text:
    Commonwealth v. Boulos, Appellant.

      Criminal law — Conspiracy—Sunday law.

    On an indictment for .a conspiracy to obstruct and defeat the laws relating to Sunday labor, a conviction may be sustained where it appears that the defendant for several successive Sundays kept open his store on Sunday, and thereafter paid the fines imposed upon himself and clerks, and that subsequently he secured the assistance of two strange and unknown persons who came to his establishment on Saturday night, and after assisting in the business on Sunday disappeared shortly after midnight leaving no traces of their whereabouts.
    The declarations of a person indicted for conspiracy may be admitted against him as evidence of the conspiracy although the fact of the conspiracy has not been shown by other evidence, and no offer made to show it, if it appears that the case is not pressed against the other defendants.
    Argued Oct. 22, 1907.
    Appeal, No. 96, April T., 1907, by defendant, from judgment of Q. S. Fayette Co., June T., 1907, No. 80, on verdict of guilty in case of Commonwealth v. Charles Boulos et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy to obstruct and defeat the laws relating to Sunday labor. Before Reppert, P.^J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which defendant was sentenced to pay a fine of $250 and undergo an imprisonment in the county workhouse for six months.

      Errors assigned were in refusing binding instructions for defendant and in refusing to strike out declarations of the defendant admitted in evidence.

      H. S. Dumbauld, of Sterling, Higbee & Dumbauld, for appellant.
    — To make the declarations of an alleged conspirator admissible in evidence against his co-conspirators, there must be preliminary proof of the joint purpose and action: Marshall v. Faddis, 199 Pa. 397.
    The penalty provided by the act is exclusive.

      December 12, 1907:

      Thomas H. Hudson, district attorney, with him D. M. Hertzog, for appellee.
    — Defendant’s declarations were properly admitted: Jones v. Com., 72 Ya. 836; Com. v. Zuern, 16 Pa. Superior Ct. 588; Com. v. Stambaugh, 22 Pa. Superior Ct. 386; Heine v. Com., 91 Pa. 145.
   Opinion by

Beaver, J.,

The appellant, another named and others not named were indicted for a conspiracy, in the first count, for agreeing “together between and amongst themselves to do a certain unlawful act, to wit: to keep open the storeroom of one Charles Boulos, at Uniontown, said county and state, and to dispose of goods, merchandi.se and fruits on the first day of the week commonly called Sunday, in violation of the Act of assembly of April 22, 1794, 3 Sm. L. 177, sec. 1,” and, in the second count, as follows: “Having been repeatedly arrested and having been repeatedly fined for the violation of said law, and having in each instance paid the fine of $4.00 each for some of said defendants, the said defendants, well knowing what was due to the commonwealth in each case for the violation of said act of assembly, did unlawfully, falsely, fraudulently, willfully and maliciously combine, confederate and agree together, between and amongst themselves, that certain ones of the above-named defendants should, after having violated said act of assembly and after having made themselves liable to a fine of $4.00, withdraw themselves from said commonwealth and from the jurisdiction of this court on Sunday, the same day the said act of assembly had been violated, in the nighttime and before they could be lawfully arrested, with the intent of cheating and defrauding the commonwealth of Pennsylvania of the sum of $4.00, the fine due the commonwealth in each case for the violation of the said act of assembly, and with the further intent of defeating and obstructing the due process of law, contrary,” etc.

The third count is not now necessary to consider, the court having charged that no one could be convicted thereunder; and the court having further instructed the jury that the other defendant named could not be convicted under the in.dictment, the appellant was found guilty under the first and second counts of the indictment herein referred to.

sIt was clear from the testimony, and was not denied, that the defendant had habitually kept his store open, in violation of what is known as the Sunday law; that for a time he was regularly arrested and fined and paid the fines for himself and for each one of his clerks; that later, presumably to avoid costs, he appeared before the magistrate immediately after midnight and made information against his brother and another clerk and that his brother made information against him; that the fines were then duly imposed and paid by him, together with the costs; that subsequently, on three several succeeding Sundays, he employed on Saturday night two strange, unknown persons, who lodged in his house; that they assisted him in his business on Sunday, continuing from 8 o’clock in the morning until 10 o’clock at night; that they then disappeared; that the same persons were not employed on any succeeding Sunday and that, when sought for after midnight, they could nowhere be found in the immediate vicinity or in the surrounding region. The defendant, upon being interrogated as to who the men employed by him were and where they had gone, gave different answers. To one witness he said, in answer to the question as to where they were, “that he didn’t know, and then he said they are from above or about Fairmont,” Fairmont being in West Virginia. According to another. witness, who interrogated him as to who the men were, what were their names and where they had gone, he said: “They just come around; I don’t know the names; I don’t know where they went; I think in the neighborhood of Fairmont.” It is clearly apparent from the testimony that on the three several Saturday nights two strange men appeared who were not the same on any two occasions. They were employed by the defendant to violate the law; they lodged in his house and did confessedly violate the law on the following Sunday; that they all disappeared about the same time on Sunday night and could not be found in the vicinity after midnight. As explanatory of the manner in which they disappeared, the justice of the peace, before whom a number of hearings were had, testified: “On one occasion, after the hearing was over, I was talking^ with Mr. Boulos, and I said, ‘Charley, where are those fellows?’ He says, ‘I don’t know, maybe they have gone to Fairmont,’ and I says, “They couldn’t get out to Fairmont at that time of night,’ and he says, ‘Oh, they went on a freight train.’ ”

In the face of these striking coincidences and of the declarations of the defendant, which are not denied, the appellant claims that there was no evidence before the jury upon which conviction could be based, that is, that the jury would not be justified in inferring from these peculiar circumstances that there was confederation and agreement between the men, who appeared on Saturday night and who disappeared on Sunday night, and the defendant. It seems to us that the inferences arising from these facts are fairly deducible. This disposes of the most important question in the case.

It is alleged, however, that the second count of the indictment does not charge a criminal offense. If there were nothing in the count, except that which is stated by the appellant in regard to the fine, in charging the defendants “with the intent of cheating and defrauding the commonwealth of Pennsylvania of the sum of $4.00, the fine due the commonwealth in each case for the violation of said act of assembly,” when the fine had not in fact been imposed, there might be some force in the contention, but coupled as it is, “With the further intent of defeating and obstructing the due process of law, contrary to the form of the act of assembly,” even in case of a motion to quash, we think this count could have been sustained.

It is further contended by the appellant that his declarations could not be given in evidence as proof of a conspiracy, until the fact of confederation .and agreement together was established or accompanied by an offer to establish it. This might have been true, if the declarations had affected other parties, but they were surely evidence as against the defendant himself. The conviction of the other defendant named was not pressed, and the unknown defendants were not arrested, so that, as the case finally went to the jury, these declarations affected only the defendant himself. They were, therefore, clearly competent as evidence against him: Commonwealth v. Zuern, 16 Pa. Superior Ct. 588; Commonwealth v. Stambaugh, 22 Pa. Superior Ct. 386; Heine v. Commonwealth, 91 Pa. 145.

If the defendant was properly convicted, as we think he was, we have nothing to do with the effect of that conviction, even if it was an efficient and effective means of keeping his store closed or, as the appellant puts it, of increasing the penalty for Sunday labor. He was not indicted for Sunday labor, but for a conspiracy to obstruct and defeat the laws relating to Sunday labor, which is a very different thing.

The case was fairly tried, the defendant’s points were properly disposed of and the facts were of such a character that the jury could fairly draw from them the inference of the defendant’s guilt. The case requires no further discussion.

The judgment is affirmed and the record remitted to the court below, to the end that the sentence of the court be fully carried into effect.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Zumpfe v. Schultz, Appellant.

      Bankruptcy — Debtor’s exemption — Exemption—Attachment execution.

    Money allowed a bankrupt “in lieu of his exemption” may be attached in the hands of the trustee in bankruptcy on a judgment entered against a bankrupt on a note wherein the bankrupt waived the benefits of the exemption law.
    Argued Oct. 14, 1907.
    Appeal, No. 150, Oct. T., 1907, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1906, No. 2,903, on answers of garnishee in case of William A. Zumpfe v. Gustav Schultz, N. Schultz and Charles B. Weidlog.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment on garnishee’s answers.
    The record showed that the plaintiff issued an attachment execution on a judgment entered against the defendant, summoning one Charles Weissinger, trustee in bankruptcy, as garnishee. The garnishee in his answers made the following statement as to property in his hands: “as Trustee in Bankruptcy of estate of Gustav Schultz, U. S. D. C. E. D. of Pa. Cause No. 2742, I hold Three hundred Dollars ($300) allowed Gustav Schultz in lieu of his exemption which amount is now deposited to my credit at bank as trustee of said bankrupt estate. Said bankrupt has applied for his discharge, but no discharge has been granted.” The plaintiff thereupon moved for judgment on the answers. The defendant filed a suggestion of record that no judgment could be entered on the answers on the ground that they showed that the moneys attached were in the hands of a public officer; the defendant also took a rule to quash the attachment execution on that ground. The court entered judgment on the answers in favor of the plaintiff and discharged the rule to quash the. attachment.
    December 12, 1907:

      Error assigned was the order of the court.

      Alfred Heymann, of Sandberg & Heymann, for appellant.

      William B. Davis, with him W. Norman Morris, for appellee.
   Opinion by

Beaver, J.,

To whom did the money attached in the hands of the garnishee, trustee for the creditors of the defendant’s bankrupt estate, belong? The answer to this question, if a definite answer can be given, will determine this case. This answer we think is found, in essence at least, in Lockwood v. Exchange Bank, 190 U. S. 294, in which Mr. Justice White, delivering the opinion, after reviewing the provisions of the bankrupt act of 1867, and the decision of the supreme court of the United States thereunder, and referring to the provisions of the act of 1898, says: “We think that the terms of the bankruptcy act of 1898, above set out, as clearly evidence the intention of Congress that the title to the property of a bankrupt generally exempted by state laws should remain in the bankrupt and not pass to his representative in bankruptcy, as did the provisions of the act of 1867 considered In re Bass. The fact that the act of 1898 Confers upon the court of bankruptcy authority to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered, affords no just ground for holding that the court of bankruptcy must administer and distribute, as in- ■ eluded in the assets of the estate, the very property which- the act in unambiguous language declares shall not pass from the bankrupt or become part of the bankruptcy assets. The two provisions of the statute must be construed together and both be given effect. Moreover, the want of power in the court of bankruptcy to administer exempt property is besides shown by the context of the act, since throughout its text exempt property is contrasted with property not exempt, the latter alone constituting assets of the bankrupt estate subject to administration. The act of 1898, instead of manifesting the purpose of Congress to adopt a different rule from that which was applied, as we have seen with reference to the act of 1867, on the contrary exhibits the intention, to perpetuate the rule, since the provision of the statute to which we have referred in reason is consonant only with that hypothesis.”

Whilst this precise question was not before this court in the form in which it is presented here, the principle was, we think, determined in Sharp v. Woolslare, 25 Pa. Superior Ct. 251, in which it was determined that: “A federal trustee in bankruptcy is not entitled to the bankrupt’s exemption of $300, against a creditor who has attached the same by an attachment execution issued and served within four months prior to the bankruptcy, on a judgment waiving exemption.”

If the title to the bankrupt’s exemption does not pass to the trustee in bankruptcy but remains in the bankrupt and if for this reason, as is pointed out by Judge Morrison in Sharp v. Woolslare referred to, the trustee is not entitled to the $300 exemption which has been attached within four months preceding bankruptcy, on the ground that the trustee is not entitled thereto, it would seem to follow necessarily that the $300 exemption in 'the hands of the trustee in bankruptcy, although, as he declares in his answers to interrogatories, it is deposited to the credit of his account as trustee, does not belong to the creditors but is still the property of the bankrupt. If this be so, and we think a consideration of the authorities referred to in the case last cited leads to such a conclusion, we are unable to see why the attachment execution attaching the money in the hands of the trustee in bankruptcy, as garnishee, upon a judgment in which the bankrupt waived the benefit of the exemption, is not good and, if so, why the entry of judgment in favor of the plaintiff, against the garnishee, upon his answers admitting that the money was in his hands allowed the defendant in lieu of his exemption but was deposited to his credit as trustee, was not proper and legal.

This position does not in any way conflict, if we understand the case, with In re Renda, 17 Am. B. R. 521. In that case the money was in the hands of the receiver. There was a dispute as to its distribution. It was, therefore, in custodia legis. There is, as we view it, a manifest distinction between a receiver in bankruptcy, who is the officer of the court, and a trustee of the creditors. In In re Renda it was said: “The bankrupt assented to the sale by the receiver by which the fund was produced, and the money being in the latter’s hands, the court has now to say how it is to be disposed of, necessarily passing upon conflicting claims. If the opposite course were pursued in the present instance, it would work manifest injustice. The bankrupt could put the money into his pocket and those in whose favor he has waived his right would be without redress.” So here, if this attachment were to be quashed, the money in the hands of the garnishee being the property of the bankrupt and not of the creditors, if it were paid over to the former, he could put it in his pocket and the plaintiff would be without redress.

There is no contesting creditor here, no conflicting claim. The money belongs to the bankrupt. Shall the fact that it is in the bank account of the trustee in bankruptcy and not in his individual account, defeat the attachment? We think not. Wherever deposited, the title to the money is in the bankrupt and, if it is, it is subject to attachment.

The order of the court below, entering judgment against the garnishee upon his answers to interrogatories, is affirmed and the appeal dismissed at the costs of the appellant.


author: Morrison, J.,

text:
    Pratt’s Estate.
    December 12, 1907:

      Decedents’ estates — Orphans’ court — Evidence—Findings of fact— Review — Contract.
    A finding of fact by an auditing judge of the orphans’ court that a decedent in his lifetime did not make a contract with an artist for the painting of a portrait of a friend, if based upon sufficient evidence and confirmed by the court in banc, will not be set aside by the appellate court in the absence of manifest error.
    Argued Oct. 16, 1907.
    Appeal, No. 67, Oct. T., 1907, by Max Rosenthal, from decree of O. 0. Phila. Co., Jan. T., 1905, No. 680, dismissing exceptions to adjudication in Estate of Dundas T. Pratt, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exception to adjudication.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were in the following form:
    1. ' The learned court erred in holding that the evidence failed to show that an agreement had been entered into between Max Rosenthal and Dundas T. Pratt for the painting of the portrait of Ferdinand J. Dreer.
    2. The learned court erred in not awarding to Max Rosenthal the sum of $800.

      Hampton L. Carson, for appellant.

      Carlyle H. Boss, with him John G. Johnson, for appellee.
   Opinion by

Morrison, J.,

At the adjudication of the executor’s account by Ashman, P. J., auditing judge, the appellant presented a claim against the estate of Dundas T. Pratt, deceased, of $800 for the painting of a portrait of Ferdinand J. Dreer at the alleged instance and request of the testator, Pratt. Of course, the burden rested on the appellant to prove a contract with Pratt to paint the portrait. Having averred such contract he must produce sufficient evidence to fairly sustain it. How did he meet this burden? Several witnesses testified before the auditing judge, and their testimony clearly established the fact that for some time prior to his death the testator had in mind the project of having a portrait of Dreer painted by appellant and having it subsequently presented to the historical society. The strongest testimony for the claim was given by Mr. and Mrs. Everly, and the strongest testimony' against the claim was that of Mrs. Moon who squarely testified that after the. death of Pratt she had a conversation with the appellant about the portrait and why it was not painted and he told her that it was: “because Mr. Pratt had not given me the final orders.” We have carefully read and considered all of the testimony and it falls short of proving such a clear contract or agreement between the appellant and the testator as is required to bring the case within the rule contended for by the learned counsel for the appellant. He says: “In this case this court is invited to review and set aside a finding of fact by the court below because the court ignored uncontradicted testimony and, further, to review and correct errors in deductions from the testimony and to set aside conclusions from reasoning which is at war with the evidence taken as a whole. In support of this contention he cites the familiar cases of Phillips’s Appeal, 68 Pa. 130; Sproull’s Appeal, 71 Pa. 137; Hindman’s Appeal, 85 Pa. 466; Cake’s Appeal, 110 Pa. 65.

We fully recognize the force of these cases and they must be followed where the evidence brings a case within the rule established by them. But these cases clearly hold that the credit to be given to the witnesses must depend much upon their appearance and conduct before the examiner and that the report of an examiner or master affirmed by the court below, as a general rule, will not be set aside by the appellate court.

In the present case all of the testimony given in support of the claim is susceptible of the explanation that the testator intended to give the appellant an order to paint the portrait but did not do so, except the testimony of the Everlys which is to the effect that the testator told them he had given the order for the portrait. But against this is the clear, positive testimony of Mrs. Moon that she called on the appellant after the death of Pratt and asked to see the picture and was told by appellant: “The picture has not been commenced.” I said, “How is that, there has been so much talk about it I presumed I would actually see it.” I said, “Why is it?” He said, “Because, Mr. Pratt had not given me the final orders.”

The appellant denied this conversation, but the auditing judge saw the witnesses and heard the testimony and he believed Mrs. Moon. Her testimony, if believed, is convincing that long after the death of Pratt the appellant did not consider that he had a contract with Pratt to paint the portrait. It is quite possible Mr. and Mrs. Everly misunderstood Mr. Pratt to say he had given the order while he only talked about giving it. Such misunderstandings' frequently occur. If it be conceded that a contract could have been inferred from the testimony on the part of the appellant such inference was to some extent rebutted by the testimony of Mrs. Moon, corroborated by the fact that nearly four months after the death of Pratt the portrait was not painted and not even commenced. It is very certain that the testimony, taken as a whole, did not present such clear evidence of a contract between the appellant and Pratt that the learned auditing judge committed palpable error in finding that the claim was not sustained. Moreover, the court below dismissed the exceptions and approved the adjudication of the auditing judge on the ground that the question of a contract depended on the credibility of the witnesses and the weight of their testimony. In short, that it “is a question of fact as to which the finding of the auditing judge, in the absence of clear error, is conclusive.” We fail tn find any clear error in the finding of fact that the testator made no contract with the appellant to paint the picture in question.

The most favorable view of the testimony, in favor of the appellant, does not establish the terms of the contract, its price, the quality and size of the portrait, when it was to be painted and by whom approved. If a contract could be inferred from the evidence it is not so clear that the auditing judge ought to be convicted of error in refusing to so find. If it be conceded that the auditing judge might have found either in favor of a contract or against it, on all of the evidence the appellate court ought not to reverse him as he had the best opportunity to determine the credibility of the witnesses and the weight of their respective testimony. We are unable to take a more favorable view of the evidence for the appellant than above indicated. In Kern’s Estate, 18 Pa. Superior Ct. 506, we said: “As to the merits of the claim of Mrs. Kern the principle applies that the findings of an auditor upon questions of fact approved by the court below will not be reversed on appeal except for flagrant error. Especially is this true where the findings are based on oral testimony.” In Wendt’s Estate, 14 Pa. Superior Ct. 644, we said: “The weight of this testimony was for the auditor in the first instance. The credence to be given her testimony was largely to be determined by her whole testimony, her manner, motive or bias, the inherent probability of her story, want of accurate recollection and contradiction.” In Fague’s Estate, 19 Pa. Superior Ct. 638, we said: “That the finding of an auditor upon questions of fact, which have been approved by the court below, will not be disturbed on appeal except for plain mistake, is so well settled as not to require the citation of authority.” In our opinion the whole evidence brings the present case within the rule indicated by the above cited cases.

The learned auditing judge and the court below have had wide experience in hearing and disposing of this class of cases and their judgments are entitled to much weight. Upon the whole evidence they were not satisfied that the contract under which the claim was based was ever made and we are not convinced that in this conclusion there is clear or palpable error.

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

Orlady, J., dissents.


text:
    Commonwealth v. Bartholomew, Appellant.
    December 12, 1907:

      Criminal law — Motion in arrest of judgment — Insufficiency of evidence.

    A motion in arrest of judgment in a criminal case is not the proper method of raising the question of the insufficiency of the evidence.
    Argued Oct. 18, 1907.
    Appeal, No. 146, Oct. T., 1907, by defendant, from judgment of O. and T. Lehigh Co., April T., 1907, No. 5, on verdict of guilty in case of Commonwealth v. Cornelius Bartholomew.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for abortion. Before Trexler, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were as follows:
    1. The court erred in overruling the defendant’s motion in arrest of judgment.
    2. The court erred in entering judgment upon the verdict of the jury.
    3. The court erred in not arresting the judgment for want of sufficient evidence to sustain the conviction.

      E. J. Lichtenwalner, for appellant.

      H. W. Schantz, district attorney, for appellee.
   Opinion by

Morrison, J.,

The defendant was tried and convicted of the crime of abortion and, after sentence to the penitentiary, he appealed to this court.

The errors assigned are, first, the court erred in overruling the defendant’s motion in arrest of judgment; second, the court erred in entering judgment upon the verdict of the jury; third, the court erred in not arresting the judgment for want of sufficient evidence to sustain the conviction.

The learned counsel for the defendant opens his printed argument thus: “the only question raised by the assignments of error in this case is whether there was sufficient evidence to sustain the conviction of the defendant for abortion. The subject of the insufficiency of the evidence was raised and brought to the attention of the court after the conviction by motion in arrest of judgment and for a new trial. The reasons assigned were principally directed to the question whether there was sufficient evidence to sustain a conviction.”

The record shows a good indictment, issue joined and a trial and verdict of guilty and no reason whatever appears on the record for arrest of judgment. The learned counsel does not contend'that the record properly discloses iany sufficient ground for arrest of judgment. His contention is that the evidence is insufficient to sustain the verdict. But a motion in arrest of judgment does not raise that question, as we will endeavor to show further along in this opinion. The first assignment is dismissed.

It follows, of course, that the second assignment must be dismissed because the jurisdiction, trial and verdict being regular, the judgment on the verdict follows as a legal result.

The third assignment is bad because a motion in arrest of judgment is not the proper method of raising the question of the insufficiency of the evidence: Commonwealth v. Schollenberger, 17 Pa. Superior Ct. 218; Commonwealth v. Gurley, 45 Pa. 392.

The learned counsel says: “The Supreme Court in several cases has announced the doctrine that it was the duty of the court and in a proper case the court should declare the evidence to be insufficient. Pauli v. Commonwealth, 89 Pa. 432, and Krause v. Commonwealth, 93 Pa. 418, are cited to support the above proposition. But in those cases, and all others that have been found sustaining that doctrine, the court was requested at the proper time to so charge on behalf of the defendant. In the present case no such request was made nor was there even an exception taken to the charge. Therefore, no ground whatever appears for arrest of judgment: Commonwealth v. Hanley, 15 Pa. Superior Ct. 271, opinion of Rice, P. J., p. 276.

Where the defendant at the proper time requests the court to instruct the jury to find a verdict of not guilty, and his request is refused and excepted to, the sufficiency of the evidence to sustain a conviction may be inquired into on appeal: Commonwealth v. Barrett, 28 Pa. Superior Ct. 112; Commonwealth v. Ruddle, 142 Pa. 144; Commonwealth v. Harris, 168 Pa. 619, opinion of Supreme Court, 628. The assignments must all be dismissed.

While the evidence is not properly before us for review we have carefully read it to see whether it is apparent that the defendant was convicted on insufficient evidence; and we conclude that there was ample evidence to support the verdict. Therefore, it is not strange that the court, after listening to the evidence, refused the defendant a new trial and entered judgment on the verdict. On this record, after the learned court determined against a new trial, the law demanded sentence, which is the judgment of the court upon the matter contained in the record.

The appeal is dismissed at the costs of the appellant. The judgment is affirmed and the record is remitted to the court below with direction to have the judgment carried into execution.


text:
    Bloom, Appellant, v. Gourlay.

      Contract — Action for money had and received — Lack of privity.

    In an action for money had and received it appeared that the plaintiff and defendant with others signed an agreement with a person owning certain, mining locations, by which the latter was to perfect the title and assign to the subscribers each a certain interest in the property. On the strength of this agreement the defendant paid to the owner a considerable sum of money, covering not only his own subscription, but that of the plaintiff and others, and received receipts therefor. Subsequently the plaintiff paid to the defendant the amount of his subscription, and received one of the receipts signed by the owner, which he retained and produced at the trial. The subscription agreement was also produced. It was not shown that there was any agreement on the part of the defendant to pay back to plaintiff the money in question. Held, that the nonsuit was properly entered.
    December 12, 1907:
    Argued Oot. T., 1907.
    Appeal, No. 113, Oct. T., 1907, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1901, No.- 1,863, refusing to take off nonsuit in case of Homer C. Bloom v. Walter N. Gourlay.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for moneys had and received. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Charles A. Chase, with him Charles L. Smyth, for appellant.

      E. Cooper Shapley, for appellee.
   Opinion by

Beaver, J.,

The- plaintiff alleged in his statement of claim “ That on or about August 1st, 1899, the defendant alleged and represented to the plaintiff that the defendant was forming a syndicate, to be called The Big Ogema Mining Syndicate, for the purpose of purchasing, for the sum of $27,000, certain large tracts of government land, consisting of about 2,160 acres, alleged to be of great-value, and containing valuable ores and minerals, situated in the Province of Ontario, Canada, the ownership of which lands the defendant then and there alleged and represented was controlled by him.

“That the defendant thereupon verbally agreed and undertook to sell to the plaintiff, for the sum of $1,000, an undivided one-twenty-seventh interest in and to the whole of said tracts of land, which one-twenty-seventh interest the plaintiff thereupon verbally agreed to purchase.

“That thereupon, in pursuance of said agreement and understanding, the plaintiff paid to the defendant the sum of $1,000 in two installments of $500 each. ■

“That the said sum of $1,000 was then and there had and received by the defendant in payment for the undivided one-twenty-seventh interest of the plaintiff in and to the said tracts of land, and thereupon it became and was the duty of the defendant to convey and deliver, or cause to be conveyed and delivered, to the plaintiff, the said one-twenty-seventh interest in and to the said tracts of land.”

Alleging further that the defendant had not conveyed or delivered, or caused to be conveyed and delivered, to the plaintiff the said interest, or any part thereof, and that thereupon he became liable to pay to the plaintiff the sum of $1,000 paid to him, the defendant, in that behalf, etc.

Upon the trial of the cause, the defendant was called, as upon cross-examination. In the course of his examination, an agreement in writing was produced, which was offered in evidence by the plaintiff, between W. S. Dent, of the first part, and fourteen persons from Philadelphia and elsewhere, including the plaintiff and defendant, parties of the second part, in and by which the party of the first part represented that he “ owns and controls, by reason of discovery rights, ownership of survey, plans and field notes, and application under the provisions of the Lands Title Act for the Province of Ontario, certain parcels or tracts of land known as mining locations,” therein specifically described. Representing further, that “The said party of the first part represents that the said mining locations contain gold-bearing veins, as set forth and described in the general report of the property, dated May 7, 1899, and agreeing as follows: First, to obtain crown patents or fee simple deeds for the above-mentioned lands in the names of the parties hereto. Second, to transfer or set over to the said parties of the second part a two-thirds undivided interest in the before-mentioned locations, upon the following terms, to wit: ” Which said terms were that the parties of the second part were to subscribe or raise the sum of $18,000, “ to be paid over to the said party of the first part, for the purpose of paying the government dues and other expenses incident to obtaining the patents or deeds for said lands, and for the reimbursement in full of all claims for surveys and exploratory work done or entered into by the said party of the first part. Each of the parties of the second part agree to subscribe and pay over to the said party of the first part the amounts set opposite their respective names;” the said plaintiff and the said defendant each subscribing and agreeing to pay the sum of $1,000. The purpose of the agreement was declared to be “ to create or form a parent syndicate which will float or secure the flotation of limited joint companies to develop or work any part or parts of the above-mentioned lands, and none of the parties hereto shall be held liable for any costs beyond the original amount of subscription, which it is understood shall be used for the purpose of obtaining titles to the above-mentioned lands.” This agreement was signed and sealed, among others, by the defendant and the plaintiff, respectively.

It appeared also in the testimony, and was not contradicted, that the defendant had paid to Dent the sum of $10,000, including his own subscription, $1,000 of which was advanced by him on account of the plaintiff’s agreement to pay the sum of $1,000 to Dent, for which Dent delivered to him ten or more receipts of $1,000 each, and he afterwards received from the plaintiff two checks of $500 each, sending him, on the receipt of the last one, Dent’s receipt for $1,000, which was received by the plaintiff and retained by him and produced upon the trial. Numerous letters from the defendant to the plaintiff were also produced which were in entire accord with the transaction as related by the defendant. The plaintiff was also called as a witness, confirming, in the main, the testimony of the defendant, admitting his signature to the agreement in writing and also the receipt for the money paid by the defendant to Dent. He also admitted, on cross-examination, in response to the question “For what purpose did you give him this money?” “I gave him $1,000 for a certain proportion of this land, just as that contract calls for.” It is very.evident, not only that' the statement of claim was not borne out in any particular by the testimony of the plaintiff, but that the contract with Dent was only for such interest as he had in the lands described in the agreement, and that the title was to be subsequently obtained* by him and conveyed to the parties to the agreement. There was no contractual relation of any kind established between the plaintiff and the defendant and no agreement to pay back the money was shown, nor could any legal obligation to return it be inferred from the facts, as developed in the testimony.

The court below was clearly right in entering the nonsuit and the refusal to take it off was not error.

Judgment affirmed.


text:
    Stewart v. General Accident Insurance Company of Philadelphia, Appellant.

      Insurance — Accident insurance — Warranties—Breach of warranty— Contract — Evidence.
    In an action upon an accident insurance policy it appeared that there was indorsed on the policy a schedule of warranties signed by the insured containing the following warranties:
    “I have no accident or health insurance issued by stock companies, assessment or fraternal associations, except as follows:
    “I have suffered from the following accidents, diseases or sicknesses. , . .
    “Other than as above stated, I have never received any injury or suffered from any disease or sickness of any character.
    “ I have never received nor been refused indemnity for any accident, disease or sickness, except as herein stated.”
    The defendant offered evidence which tended to prove that the plaintiff had been guilty of breach of all four of the warranties. Held, that it was reversible error for the court to rule out the offers.
    Argued Oct. 29, 1907.
    Appeal, No. 259, Oct. T., 1906, by defendant, from judgment of C. P. Bedford Co., Nov. T., 1905, No. 136, on verdict for plaintiff in case of John B. Stewart v. The General Accident Insurance Company of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a policy of life insurance.
    The facts are stated in the opinion of the Superior‘Court.
    Verdict and judgment for plaintiff for $235.82. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence referred to in the opinion of the Superior Court; and (4) in giving binding instructions for plaintiff.

      Edgar H. Boles, of Smithers & Lank, for appellant.
    — The warranties were a part of the contract: Watertown Fire Ins. Co. v. Simons, 96 Pa. 520; Frisbie v. Fayette Mutual Ins. Co., 27 Pa. 325.
    It is the rule of many cases that a concealment of facts, material to the risk and within the knowledge or power of the assured, and which the insurer is not bound to know, vitiates the policy, particularly where the contract places the duty of revelation upon the assured: Satterthwaite v. Mutual Beneficial Ins. Assn., 14 Pa. 393; Jennings v. Ins. Co., 2 Denio (N. Y.), 75; Armenia Ins. Co. v. Paul, 91 Pa. 520; Pine v. Vanuxem, 3 Yeates, 30; Curry v. Sun Fire Office, 155 Pa. 467; Rex v. Ins. Companies, 2 Phila. 357.
    This case is controlled by those cases announcing the principle that where the statements of the policy provide that there is a positive duty on the assured to make disclosures affecting material matters, then that duty is absolute without further request from the company, and the failure to disclose forfeits the policy: Fire Assn, of Phila. v. Williamson, 26 Pa. 196; Desilver v. State Mut. Ins. Co., 38 Pa. 130; Penna. Ins. Co. v. Gottsman, 48 Pa. 151.
    There can be no recovery upon a policy where there has been a false warranty as to a material fact, although the benefits claimed do not result from an injury connected with the subject of such false warranty. The false warranty avoids the whole policy: Hartman v. Keystone Ins. Co., 21 Pa. 466; Carson v. Metropolitan Life Ins. Co., 1 Pa. Superior Ct. 572.

      John H. Jordan, for appellee.
    — The policy was not void, because of the unanswered questions in the application: Hower v. Ins. Co., 9 Pa. Superior Ct. 153; Armenia Ins. Co. v. Paul, 91 Pa. 520; Satterthwaite v. Mut. Beneficial Ins. Assn., 14 Pa. 393.

      December 12, 1907:
   Opinion by

Beaver, J.,

The plaintiff accepted a general accident policy, issued by the defendant, upon January 27, 1905, upon which is indorsed a schedule of warranties, signed by him, containing the following paragraphs:

“I have no accident or health insurance issued by stock companies, assessment or fraternal associations, except as follows:

“I have suffered from the folio-wing accidents, diseases or sicknesses. . . .

“Other than as above stated, I have never received any injury or suffered from any disease or sickness of any character.

“I have never received nor been refused indemnity for any accident, disease or sickness, except as herein stated.”

The contract of insurance was made and the policy issued, as appears therein, “in consideration of the policy fee, the premiums and of the statements, warranties and agreements in the schedule indorsed hereon and made a part hereof, which statements the assured makes on the acceptance of this policy and warrants to be true.”

Upon the trial, the defendant offered to prove “that at the time the policy in suit was issued John B. Stewart held a policy in the Fraternities Accident Insurance Company, providing for an indemnity of $25.00 a week; that in May, 1904, he was sick with pleurisy and received sick benefits from the company amounting to $37.50; this for the purpose of showing breach of warranty, wherein he states 'I have no accident or health insurance issued by stock companies, assessment or fraternal associations, except as .... I have never received nor been refused indemnity for any accident, disease or sickness, except as herein stated.’ ”

There were also distinct offers to prove by Dr. W. C. Miller and-Dr. H. B; Strode that the plaintiff had been treated in the month of May, 1904, for an attack of pleurisy, whilst a member of the Fraternities Accident Insurance Company of Philadelphia, and that he had actually received from said company an indemnity amounting to $37.50. These offers being made for the purpose of showing a breach of the warranties contained in the schedule hereinbefore referred to.

All these offers were ruled out by the trial judge in the court below and their rejection constitutes the first three assignments of error.

The fourth assignment is as to the charge to the jury:

“Now, gentlemen of the jury, he paid his money for this policy, the company received it, the company issued the policy, and, under the conditions contained in this policy, he would be entitled to recover just what amount is set forth in the declaration, or $235.85, and we instruct you to render a verdict for that amount.”

The testimony of the defendant, as to the material allegations contained in its several offers, having been ruled out, there was, of course,' no defense, and, if the ruling of the court in this regard was proper, the binding instructions for the plaintiff naturally follow.

Were the offers of the defendant properly excluded? The appellee here assumes, and the trial judge in the court below seems to have done so, that the plaintiff, having failed to answer questions which were important and essential, as if in an application upon which the policy and schedule of warranties thereto attached are based, he was not bound by the warranties contained in the said schedule. This, however, is based upon an entire misapprehension of what the warranties are. The warranties are contained in a schedule which formed a part of the policy and became operative and binding when it was accepted. The declaration “ I have no accident or health insurance issued by stock companies, assessment or fraternal associations, except as follows:” no exception being added, was equivalent to a direct and unequivocal statement of a fact. It is not in the form of a question and is not interrogative in substance or effect. It required no answer. If the statement was to be regarded as qualified, the qualification must necessarily have been added. So as to the other warranties: “Other than as above stated, I have never received any injury or suffered from any disease or sickness of any character.” There was no statement as to previous disease or sickness. And so as to the warranty, “I have never received nor been refused indemnity for any accident, disease or sickness, except as herein stated.” The testimony offered contradicted all three of these warranties and the policy having been received by the plaintiff with these warranties therein contained, and having been offered in evidence by him as part of his contract with the defendant company, he was bound by them, and the defendant should have been allowed to show that these representations were false, if it could do so. The testimony, proposed in all the several offers of evidence was competent, relevant and material and should have been received. If received, a question for the jury, at least as to the credibility of the witnesses, would necessarily have been raised and submitted for its finding.

That the policy constitutes the contract between the parties and that the acceptance of it by the insured makes operative the warranties therein contained, which he signed, and settles the question of their materiality, scarcely requires the citation of authorities to establish. Hartman v. Keystone Ins. Co., 21 Pa. 466, and Carson v. Metropolitan Life Ins. Co., 1 Pa. Superior Ct. 572, are familiar and striking examples. In the latter case, Judge Willard quotes from May on Insurance, paragraph 184: “The test of the materiality of a misrepresentation or concealment is that it influences the insurer in determining whether to accept the risk.”

We are clearly of opinion that the several offers of evidence presented by the defendant should have been received and, if the testimony had risen to the level of the offers, there could have been no binding instructions for the plaintiff.

The assignments of error are all sustained. Judgment reversed and a new venire awarded.


text:
    Whitman, Appellant, v. First National Bank of Canton.

      Banks and banking — Check—Protest—Insufficient funds.

    Where a bank receives a check drawn upon itself but without, sufficient funds in the drawer’s account to pay it in full, and the bank makes an effort to induce the drawer of the check to make it good, and'also notifies its correspondent in a distant city of the dishonor of the check by telegraph, and on the following day protests the check, it has done all that it is required to do, and cannot be held liable to the drawee who was also the holder, because it failed to protest the check on the day on which it was received.
    Argued Nov. 21, 1907.
    Appeal, No. 38, Oct. T., 1907, by plaintiff, from order of C. P. Bradford Co., Sept. T., 1906, No. 141, discharging rule for judgment for want of a sufficient affidavit of defense in case of John H. Whitman v. The First National Bank of Canton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a check. Before Fanning, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order discharging rule for judgment for want of a sufficient affidavit of defense.

      Rodney-A. Mercur, for appellant.
    — The protest was too late: Muncy Borough School Dist. v. Com., 84 Pa. 464; Nat. State Bank v. Weil, 141 Pa. 457; Loux v. Fox, 171 Pa. 68; Willis v. Finley, 173 Pa. 28; Fegley v. McDonald, 89 Pa. 128; Carroll v. Sweet, 128 N. Y. 19 (27 N. E. Repr. 763); Seventh Nat. Bank v. Cook, 73 Pa. 483; Clark & Co. v. Savings Bank, 31 Pa. Superior Ct. 647; First Nat. Bank v. Whitman, 94 U. S. 343; Bank v. McMichael, 106 Pa. 460; Saylor v. Bushong, 100 Pa. 23; Bank v. Shoemaker, 117 Pa. 94; Bryan v. Bank, 205 Pa. 7.
    Defendant having once accepted and paid the check cannot subsequently revoke it: Pepperday v. Bank, 183 Pa. 519; Paul v. Grimm, 165 Pa. 139; Merchants’ Nat. Bank v. Goodman, 109 Pa. 422; Bank v. Ashworth, 123 Pa. 212; Hazlett v. Bank, 132 Pa. 118; Bank v. Lloyd, 90 N. Y. 530; Cragie v. Hadley, 99 N. Y. 131; Oddie v. Bank, 45 N. Y. 735; Ry. Co. v. Johnston, 133 U. S. 566 (10 Sup. Ct. Repr. 390); Espy v. Bank, 85 U. S. 604; Bank v. Leach, 52 N. Y. 350; Meads v. Bank, 25 N. Y. 143; Bank v. Yardley, 165 U. S. 634 (17 Sup. Ct. Repr. 439); Burton v. United States, 196 U. S. 283 (25 Sup. Ct. Repr. 243).
    December 12, 1907:
    The act of the teller or employee of defendant in charging the check to Brann’s account, was binding upon the bank, no matter whether there were or were not sufficient funds to his credit: Lloyd v. West Branch Bank, 15 Pa. 172; Case v. Bank, 100 U. S. 446; Hill v. Trust Co., 108 Pa. 1; Casualty Co. v. Peoples, 26 Pa. Superior Ct. 142.

      Lee Brooks, of Stone & Brooks, with him Sechrist & Hickok, for appellee.
    — In the case at bar, the defendant bank received the check in question for collection against the account of one of its depositors, and in so doing it was acting as the custodian of the depositor’s money, and at the same time as the agent of the forwarding bank for the purpose of collecting the check from the drawer; and, therefore, entitled to the usual time allowed to collecting agents: Bank v. McMichael, 106 Pa. 460; Bank v. Goodman, 109 Pa. 422; Kilsby v. Williams, 5 B. & Aid. 815; Boyd v. Emmerson, 2 Ad. & Ell. 184.
    It is sufficient, whatever the date of the check, to present it or forward it for presentation on the next day after it is received: Bank v. Weil, 141 Pa. 457.
   Opinion by

Beaver, J.,

The defendant received, on April 27, 1906, from the Farmers’ 6 Mechanics’ National Bank of Philadelphia a check drawn •by one John F. Brann in favor of the plaintiff. Assuming, as we are bound to do, that the facts stated in the affidavit of defense are correct, there were not sufficient funds to the credit of the drawer of the check at the time of its receipt to pay it in full. Instead of protesting it on the day of its receipt, the defendant endeavored to induce the drawer to make good his account, so that the check could be paid. Failing in this, before the close of the business day, the check was protested on the following morning and the Farmers’ & Mechanics’ Bank notified by telegraph of its dishonor.

The bank evidently did two things which it was not bound to do: first, it made an effort to induce the drawer of the check to make it good, and, second, it notified its correspondent in Philadelphia of the dishonor of the check by telegraph.

Did it fail to do anything which it was bound to do? It is claimed by the appellant that the check should have been protested on the day of its receipt, but to our mind no good reason for this contention is presented. The plaintiff could not have been benefited in any way, if the protest had been made on that day instead of the next morning, nor was he injured in any way by the failure to protest at the time when he claims it ought to have been done. On the contrary, the defendant’s efforts were all in his interest and for his benefit.

If we understand the situation, the drawee of the check is still the holder. It was sent by him for collection by way of Philadelphia and was received by the defendant through its Philadelphia correspondent. No indorsers were to be held and none are here complaining of any delay. If the check in question had been sent to a bank other than the defendant for collection, we take it that, under the general rule, presentation upon the following day would have been sufficient. This rule, as stated by Edwards in his work on Bills, etc., sec. 554, is: “According to the general rule, the check ought to be presented as early as the next day after its date or receipt.” No greater duty devolved upon the defendant. Inasmuch as there was no indorser to be held, so far as appears in the statement and affidavit of defense, we fail to see wherein the plaintiff was in any way injured and, unless he can show that, by the delay of the defendant bank in protesting the check, he was in some way injured, he has no right of recovery by reason thereof. There is no allegation in the statement that the plaintiff was in any way injured by the negligence of the defendant, and recovery is not sought upon that ground.

It is alleged in the statement that the defendant charged the check to the account of the drawer and later credited his account with the amount of the check. This is admitted by the defendant, who claims that the charge was made by an employee who had no authority to make it and it was subsequently corrected as soon as called to the attention of the cashier.

It is also alleged that there were funds to the credit of the drawer of the check at the time it was received by the defendant sufficient to pay it and that subsequently, through fraud and collusion, it was made to appear that there were not sufficient funds for this purpose. The affidavit of defense sets forth that at the time of the receipt of the check there was to the credit of the drawer of the check the sum of $343.41, an amount insufficient for the payment of the said check, and that, notwithstanding its efforts to the contrary, the drawer failed to make good his account, so as to place a sum sufficient to pay the check to his credit. This is an explicit denial of the claim of the plaintiff in this behalf.

In any view of the case, we regard the affidavit of defense as sufficient.

The decree of the court below, discharging the rule for judgment for want of a sufficient affidavit of defense, is affirmed, without prejudice, etc., and the appeal dismissed at the costs of the appellant.


author: Henderson J.,

text:
    Schweriner, Appellant, v. Philadelphia.

      Municipalities — Municipal improvements — Parks—Waters—Sewers.
    Where a city has the statutory power to purchase land and improve it for a park, and it does so without negligence in accordance with an adopted plan, it will not be hable to a tenant of neighboring property, whose tenancy began after the improvement was completed, for injuries resulting from a large quantity of rain water flowing from the park on to a street and into the tenant’s premises. In such a case the city is under no obligation to provide sewers with sufficient capacity to carry-off the water.

      Argued Oct. 15, 1907.
    Appeal, No. 134, Oct. T., 1907, by-plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1905, No. 4,855, on verdict for defendant non obstante veredicto in case of Clara Schweriner v. Philadelphia.
    Before Rice, P.' J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to stock of goods. Before McMichael, J.
    The facts are stated in the opinion of the Superior Court.

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

      Edmund Randall, with him M. J. McEnery and James A,. Flaherty, for appellant.
    — The city was. liable: Huddleston v. Killbuck Twp., Ill Pa. 110; Torrey v. Scranton, 133 Pa. 173.; Elliott v. Oil City, 129 Pa. 570; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305; Helbling v. Cemetery Co., 201 Pa. 171; Rife v. Middletown, 32 Pa. Superior Ct. 68; Stork v. Phila., 195 Pa. 101; Chatham Street, 16 Pa. Superior Ct. 103; Cooper v. City of Scranton, 21 Pa. Superior Ct. 17.

      T. R. White, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    — Having offered no evidence of the negligence or wrongdoing of the city, the appellant cannot recover in an action of trespass: Herr v. Altoona, 31 Pa. Superior Ct. 375; Cooper v. Scranton City, 21 Pa. Superior Ct. 17; Hosier v. Philadelphia, 12 Pa. Superior Ct. 224.
    The city committed no wrong in draining its property into Germantown Avenue: Carr v. Northern Liberties, 35 Pa. 324; Fair v. Philadelphia, 88 Pa. 309; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Pennsylvania R. R. Co. v. Kerr, 62 Pa. 353.
    There is no liability for the alteration in surface drainage caused by the necessary improvement of Vernon Park: Strauss v. Allentown, 215 Pa. 96.

      December 12, 1907:
   Opinion b,y

Henderson J.,

The plaintiff occupied the .house No. 5725 Germantown avenue, in Philadelphia, as a tenant and carried on a shoe store in a part of the building. She went into possession of the premises in June, 1904. August 6, 1905, during a heavy rain a large quantity of water flowed into the basement of her premises and into the storeroom, wetting and injuring a part of her merchandise. This water the plaintiff alleges came from the surface of Vernon Park, one of the public parks of the city, from which it flowed onto Germantown avenue and into her premises. The complaint set forth in the declaration is that the injury was caused by the negligence of the defendant in raising the grade of Vernon Park along its front on Germantown avenue and in filling up and obliterating a natural water course, which theretofore had drained the park, without providing other and adequate means of drainage as a substitute for the natural water course, whereby the rain water which fell upon the park was thrown onto the street and thence into the plaintiff’s cellar. The evidence shows that many years before the plaintiff lived in the house referred to the city acquired a tract of land containing several acres, known as the Wister property, for a public park. In the development and improvement of the park the authorities having the matter in charge raised the grade of a portion of the land along Germantown avenue and, in doing so, covered over Honey Run, a small natural water course passing through the property. The effect of this change was to bring the level of the property up to the grade of Germantown avenue with a slope toward the avenue. Provision for drainage was made through the park, but at times of very heavy rain water from the surface of the park flowed onto Germantown avenue.

The plaintiff’s action is trespass and proceeds upon the assumption that the city had done something which it was not authorized to do or which having authority to do it had done in so negligent a manner that the plaintiff is entitled to damages. The power of the city to acquire, lay out, improve and maintain ground for public parks cannot be questioned. The Act of February 2, 1854, P. L. 21, and the Act of June 24, 1891, P. L. 394, give full authority to the city to establish such parks and the latter act expressly invests the city councils with power to make improvements thereon. The Act of July 15, 1897, P. L. 273, provides for the appointment of viewers to assess damages where land is taken for a park, 'including property injured by such taking. At the time Vernon Park was purchased and improved the plaintiff was not an occupant of the premises where her injury was sustained nor is there anything in the case to indicate that she was in any way affected by the work done in the development of the park. At the time she went into possession the topographical conditions were as they had been for many years. Her tenancy was undertaken with a knowledge of the conditions then existing. As between her and the defendant the situation is the same as if there had been no superficial change in the park. If the changed condition prejudicially affected the property which the plaintiff occupied that was an injury to the owner of the land which would perhaps make the property less desirable as a tenement and would influence its rental value, but the tenant who came into the premises long after the injury was done, and the amount of whose rent may have been fixed with regard to the possible overflow of water, is not one of the persons entitled in contemplation of the law to damage for injuries growing out of the park improvement. Whether the owner of the house is within the operation of the act of July 15, 1897, it is not now necessary to consider, as he is not complaining. There is a further objection to the plaintiff’s action that there is no evidence of the defendant’s negligence. The manner of the improvement of the park was a matter of discretion to be exercised by the municipal authorities. It was not an act of negligence to develop the grounds according to the plan adopted. There might be various opinions in regard to the best method of improving the property to meet public needs, but the determination of that question must be left to the judgment of those to whom the law commits it. The municipality can only be made liable in trespass for negligence in the execution of the work and of this, as we have seen, there is no evidence: Stork v. Philadelphia, 195 Pa. 101; Herr v. Altoona, 31 Pa. Superior Ct. 375. The real complaint of the plaintiff is that the city failed to provide sewers of sufficient capacity to carry off water which accumulated on Germantown avenue and which flowed in part from the park. This is not an obligation, however, which the city assumes or is bound to discharge: Carr v. Northern Liberties, 35 Pa. 324; Fair v. Philadelphia, 88 Pa. 309. The doctrine of these cases is reaffirmed in Strauss v. Allentown, 215 Pa. 96. In that case the subject of superficial changes of the condition of land and the rights of owners to improve and build according to their requirements was considered and it was said: “In this natural change and development from agricultural or rural to urban territory some disturbance of the surface drainage is inevitable, but without negligence the municipality is not liable for the results, though a city may be authorized to construct sewers or an adequate system of drainage it is not bound to do so nor is it liable for an erroneous judgment as to what will be adequate.” The improvements made by the city were carried on with reference to the established grades of the streets upon which the park fronted and there is no suggestion that they were not appropriate to the situation of the park and the surrounding properties and streets. It is manifest that the city was within its strict rights in executing the plan adopted and that the plaintiff has failed to show any negligence in carrying out this plan.

The judgment is, therefore, affirmed.


author: Henderson, J.,

text:
    Stern v. Dwyer, Appellant.
    ■" Practice, C. P. — Affidavit of defense — Contract—Failure to deliver goods.

    In an. action on a book account for merchandise, an affidavit of defense is sufficient which avers failure on the part of the plaintiffs to make deliveries at the time specified in the contract, that by reason of a breach of the contract the defendants were unable to perform their own contracts, and, as a consequence, sustained a loss to an amount stated, and that they were obliged, also, by reason, of the plaintiffs’ default, to suspend operations in their factory because of which they sustained a loss stated.
    Where an affidavit of defense fairly sets forth facts sufficient to show prima facie a good defense it is not to be subjected to a close technical examination as in the case of a special plea demurred to. It is offered to prevent a summary judgment and for that purpose the showing of a defense with certainty to common intent is sufficient.
    Argued' Oct. 8., 1907.
    Appeal, No. 258, Oct. T., 1906, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 1,712, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Emil Stern and Jules Stern, Trading as Stern & Stern, v. Michael J. Dwyer et al., trading as Dwyer, Madden & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    The averments of the statement of claim and affidavit of defense appear by the opinion of the Superior Court.

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

      Morton Z. Paul, with him Crawford & Loughlin, for appellants.
    — It has never been the law that a defendant must prove his case in the affidavit of defense: Schlitz Brewing Company v. Rosenbluth, 33 Pa. Superior Ct. 303; Hatboro Nat. Bank v. Stevenson, 33 Pa. Superior Ct. 144; Eastern Forge Co. v. Baizley, 21 Pa. Superior Ct. 504.
    In the recent case of Schlitz Brewing Company v. Rosenbluth, 33 Pa. Superior Ct. 303, this court upheld the affidavit of defense even though the amount of the set-off-was not mentioned in figures: Yearsley v. Glaser, 32 Pa. Superior Ct. 141.

      Emanuel Furth, with him David Bortin and Jacob Singer, for appellees.

    — A set-off to be effective must not only be stated with precision and indicated in figures, but its source must be correctly traced, so as to allow the court to pass on its validity: McCracken v. First Reformed Presbyterian Congregation, 111 Pa. 106; Fritz v. Hathaway, 135 Pa. 274; Hutton v. McLaughlin, 1 Pa. Superior Ct. 642; Close v. Hancock, 3 Pa. Superior Ct. 207. .
    December 12, 1907:
   Opinion by

Henderson, J.,

The plaintiffs’ action is on a book account for merchandise, a copy of which account is attached to the statement of claim. ’ The' different items of merchandise are indicated in the account by number, apparently for convenience of identification. The defense set up is that a part of the goods for the price of which suit was brought was the subject of an order .given by the defendants to the plaintiffs October 21) 1905, and accepted by the latter, a copy of which order is attached to the affidavit of defense; that dates were fixed by the order within which the merchandise was to be delivered and that the plaintiffs failed to deliver a large part of the goods so ordered, and neglected to deliver another large part within the time stipulated for delivery; that, relying upon the plaintiffs’ undertaking, the .defendants entered into contracts with certain companies in the affidavit named to supply them with articles to be manufactured in part from the goods to be supplied by the plaintiffs; that by reason of the plaintiffs’ default the defendants were unable to perform their agreements with the said companies, as a result of which the defendants sustained a loss on their contracts of amounts stated in the affidavit. The defendants further aver and propose to prove that the plaintiffs had notice that the defendants had entered into the contracts referred to and relied upon the plaintiffs for prompt performance of their undertaking to supply the merchandise. It is further averred, that by reason of the failure of the plaintiffs to deliver goods according to their contract, the defendants were from time to time without material to be used in their manufacturing business and that it became necessary to close their factory not less than five times between December 15, 1905, and July 1, 1906, whereby they sustained a loss of not less than $125. By a comparison of the dates fixed for delivery in the order given by the defendants to the plaintiffs and the dates of delivery set forth in the copy of account filed under the statement of claim, it will be seen that much of the material charged under the numbers 57,471, 3,885, 3,890 and 3,895 was delivered long after the time specified in the order, the latest date named therein being March, 1906. It is true that under each of the numbers referred to the plaintiffs were to ship a certain quantity of the goods ordered “soon as possible.” It is manifest, however, that that had reference to the period earlier than the delivery stipulated for in December of the same year and in January and February of the year following. The intention was to provide for the immediate delivery of a small part of the goods with an arrangement for later deliveries of the balance. It is further alleged that the merchandise which was the subject of the contract is imported from abroad and not procurable in similar quantities in the open market and that such quantities as were procurable were not sufficient to enable the defendants to carry out their contracts with their customers and could only be had at prices which would have increased the defendants’ losses.

We consider this a good affidavit of defense as to the claim of set-off arising from the failure of the plaintiffs to deliver the merchandise according to their agreement and the damage sustained by reason of the shutting down of the defendants’ factory. Where an affidavit of defense fairly sets forth facts sufficient to show prima facie a good defense it is not to be subjected to a close technical examination as in the case of a special plea demurred to. It is offered to prevent a summary judgment and for that purpose the showing of a defense with certainty to common intent is sufficient: Andrews v. Packing Co., 206 Pa. 370; Hatboro National Bank v. Stevenson, 33 Pa. Superior Ct. 144; Eastern Forge Co. v. Baizley, 21 Pa. Superior Ct. 504. The latter case is closely' analogous to the one under consideration and supports the appellant’s contention. The details of the contracts, which the defendants claim to have with certain customers, are not given in the affidavit, but this is not necessary; it is a matter of proof at the trial of the cause. Their allegation is that, because of the plaintiffs’ breach of contract, they were unable to perform their own contracts, and, as a consequence, sustained a loss to the amount stated in the affidavit; and that they were obliged; also, by reason of the plaintiffs’ default, to suspend operations in their factory because of which they sustained the loss stated. These are specific averments sufficient to put the plaintiffs on notice of the matters relied on by the defendants by way of defense and to show the amount which the defendants seek to set off against the plaintiffs’ claim and they should be permitted to submit their case to the jury on the issue so presented.

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


author: Head, J.,

text:
    Duff, Appellant, v. Thrall.

      Contract — Goods sold and delivered — Rescission.
    In an action of assumpsit it appeared that defendants, wholesale grocers, ordered through plaintiffs, middlemen, a solid car of raisins of the crop of 1904, to be shipped directly from the Pacific coast to defendants. The price was to be one-half cent per pound less than the price of the new crop then nearly ready for the market. The order was accepted by the packers on the coast on condition that the car should be shipped before the middle of September, and with the understanding that if, at the time of shipment, the price for the new crop had not yet been fixed, an adjustment would be made so as to make the price conform to that which defendants offered to pay, viz.: one-half cent per pound less than the new price. The delivery to the defendants was to be “f. o. b. coast.” The car was duly consigned and shipped on September 7. On the following day plaintiffs advised defendants of that fact, and inclosed a bill and forwarded a draft for the amount of the bill to a bank where it was held awaiting the arrival of the car. On October 5, the price of the new crop was fixed, and on the same date plaintiffs sent a circular letter to all of their customers advising them of this new action, and giving them a new price. The evidence tended to show that the defendants received this circular, but overlooked it. On October 10, defendants received from plaintiffs a corrected bill adjusted at. the price fixed by the contract, aggregating over S300 more than the original bill. The car arrived not later than October 10, and defendants paid the original draft. They refused, however, to pay the excess on the ground that in giving their order they had stipulated that if the prioe should be too high, they might cut down the quantity of raisins ordered. There was nothing to show that defendants had availed themselves of the option before the goods were actually delivered. After they received the corrected bill, and after they had sold 300 boxes, which were sold before the arrival of the corrected bill, they offered to rescind as to the balance of the carload, but this offer was declined. Held, (1) that the defendants were not warranted in concluding that the contract price was finally determined, beyond the right of future adjustment, by the rendition of the first bill; (2) that the option to cut down the order should have been exercised before delivery f. o. b.; and (3) that the defendants were liable to pay to the plaintiffs the excess over the original bill.
    February 28, 1908:
    - Argued March 7, 1907.
    Appeal, No. 22, March T., 1907, by plaintiffs, from judgment of C. P. Lycoming Co., Sept. T., 1906, No. 98, for defendants non obstante veredicto in case of P. Duff & Sons v. F. B. Thrall, surviving partner of F. B. Thrall & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the jury returned a verdict in favor of the plaintiffs for $370.34. Subsequently judgment was entered for the defendants non obstante veredicto.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      Max- L. Mitchell, for appellants.

      Herbert T. Ames, with him Thos. H. Hammond, for appellees.
   Opinion by

Head, J.,

From the lengthy correspondence between the parties, covering a period of several weeks in the summer of 1905, it appears, clearly enough, that defendants, wholesale grocers in the city of Williamsport, ordered, through plaintiffs, who were jobbers or middle men in Pittsburg, a solid car of raisins of the crop of 1904, to be shipped directly from the Pacific coast to defendants. The price was to be one-half cent per pound less than the price of the new crop then nearly ready for the market. The price for the new crop is fixed each year, in the early fall, by the Raisin Growers Association of California. This order, when received by plaintiffs, was by them, with the knowledge of defendants, transmitted by wire to the packers on the coast and by them accepted, on condition that the car should be shipped before the middle of September, and with the understanding that if, at the time of shipment, the price for the new crop had not yet been fixed, an adjustment would be made so as to make the price conform to that the defendants offered to pay, viz: — one-half cent per pound less than the new price. The point agreed on for delivery to the defendant was “f. o. b. Coast.” The car was duly consigned and shipped on Septem-. ber 7. On the next day plaintiffs advised defendants of that fact and enclosed a bill covering the entire order which had included another car of assorted fruit. This bill, which plaintiffs call an “invoice” or “estimate” aggregated $2397.01 and a draft for this amount was drawn and forwarded for collection to the bank in Williamsport where it was held awaiting the arrival of the car. The prices named in this bill were those named by the western shipper and, as between him and plaintiffs, were clearly subject to adjustment when the price of the new crop should thereafter be fixed. On October 5 the price of the new crop was fixed by the Association and on the same day plaintiffs sent a circular letter to all of their customers advising them of this action and giving them the new price. It will be observed that, at this time, the car of raisins hadjiot yet reached Williamsport. The defendants, if they do not actually admit, certainly do not undertake to deny the receipt of this circular letter. On October 10 this was followed by another letter from plaintiffs enclosing a corrected or adjusted bill, at the price fixed by the contract, which aggregated $349.49 more than the original bill or estimate, and defendants were asked to substitute this for the former one, and advised that a corrected draft was being forwarded to the bank.

The car arrived at Williamsport certainly not later than October 10 and after unloading it the defendants, on the eleventh, paid, at the bank, the original draft for $2397.01. The plaintiffs’ letter, containing the corrected bill, must have reached them on that same day as they reply to it under date of October 12.

The defendants having declined to pay the balance of the price clearly fixed by their contract, viz: $349.49, this action was begun for its recovery. At the trial a verdict was rendered for the plaintiffs but judgment was afterwards entered for the defendants non obstante veredicto, and this appeal followed. The defendants, conceding that they received the goods ordered, and that they have not yet paid the contract price, resist any further payment for reasons the sufficiency of which we will now briefly consider.

They contend first that by their letter of July 29 they reserved the right to cut down the quantity of raisins if the price should be too high. The material portion of that letter is as follows: “ In order to secure Santa Clara prunes, we have decided to make up a car of prunes and fill out with peaches, and also take a solid car of raisins, subject, of course, to the opening price. In case they should be too high, we may decide to cut it down, but in all probability that will not be necessary. However, we want that privilege, should such be the case.” From the letter of plaintiffs dated August 5 the defendants must have clearly understood that the order which was submitted by wire to the packers was for a solid car of raisins, at a price to be regulated by the opening price for the new crop, and that the order had been accepted on condition that shipment be made “during the first half of September,” and that delivery be made “f. o. b. Coast.” If the option mentioned in defendants’ letter was regarded as valuable to them, it should have been exercised before the completion of the contract by the other party, or in other words, before delivery. They not only failed to exercise it before delivery at the point mentioned, but down to the date of the actual arrival of the car and the unloading of it, no attempt was made to change the quantity of raisins ordered. After delivery we think it must be conceded the option was valueless. Again in their letter of August 7, acknowledging receipt of the formal acceptance by the packer of the order for the car load of raisins, on the conditions already noted, the defendants say: “You may change the time of the shipment of this car until the latter part of September, in order to get the price before the shipment is made.” Whilst, upon its face, this seems to be a suggestion rather than a peremptory order, the plaintiffs at once replied that the.packers were only offering 1904 crop for shipment prior to September 15 and assigning a reason therefor; and after adverting to some other considerations tending to show that the order as accepted should be allowed to stand, ended: “Trusting you will understand the situation thoroughly, we remain, &c.” No reply whatever was made to this letter although a month elapsed before the car was shipped. Even when advised on September-8 that the car had started, the defendants, knowing that the new price had not yet been fixed and consequently that their contract, in this respect, had not yet become rigid, made no complaint of a premature shipment. The inference seems irresistible that plaintiffs’ explanation was fully satisfactory and that the date of shipment fixed in the packer’s acceptance of the order, was assented to.

Finally the defendants contend they had the right to assume that the prices named for the raisins in the first bill were the ultimate contract prices; that acting on this assumption, they had sold 300 boxes of them before the receipt of the plaintiffs’ letter of October 10 enclosing the adjusted or corrected bill; that they then offered to rescind as to the balance of the car load, and hold that portion of the goods subject to plaintiffs’ order, and this offer having been declined, they allege they have discharged every liability imposed by their contract.

Even if the defendants had been justified in refusing to receive any or all of the contents, they did in point of fact receive and presumably have sold all of them. They fail to disclose at what prices they were sold nor do they offer to render any account of the proceeds or show what loss, if any, they sustained for which they are entitled to credit as against the charge of the undeniable contract price. To assume, without proof, that any loss was incurred and that it precisely balanced or exceeded the sum yet due on the contract, is to adopt a conclusion wholly without foundation in the record. But, in our judgment, the defendants were not warranted in concluding that the contract price was finally determined, beyond the right of future adjustment, by the rendition of the first bill. It will be observed that bill was rendered as early as September 8. It is not pretended by any one that, at that time, the defendants believed or had any ground for believing, the price for the 1905 crop had been promulgated. Until they had satisfied themselves from some proper source that the new price had been established, they knew their contract price remained open to adjustment according to that standard. The entire correspondence shows that both parties contemplated the possibility, if not the probability, of the very contingency that actually happened, viz: the receipt of the goods before their final price could be exactly determined under the contract. The defendants’ letter of October 12 shows they were not misled merely by the receipt of the early September bill. “Not hearing from you after the opening prices for the new goods were made, we supposed the prices at which you had billed the goods were all right,” etc. This clearly warrants the inference they had been advised of the fact of the establishment of the new price at some time later than the bill; and if they learned the fact that a new price had been fixed they could have as easily learned what it was and this Would have determined, without hearing from the plaintiffs, what the contract price must necessarily be. They do not state how they learned the new price had been fixed and in this connection it is important to recall they do not deny the receipt of the plaintiffs’ circular letter of October 5 giving full information as to the new prices then just announced. The defendant firm consisted of Thrall and Long. At the time of the trial the latter was dead. On the subject of the circular letter, Thrall testified as follows: — " Q. Do you mean to say that the letter was not received by F. B. Thrall & Co.? A. No, sir; I don’t mean to say the letter did not come there. It didn’t come to my attention. Q. You, of course, received hundreds of letters at that time to which your attention was not called? A. My attention was always called to letters of importance. Q. Who called your attention to them? A. Mr. Long. Q. He is dead at the present time? A. Yes, sir. Q. It was he who received this letter? A. Yes, sir.

Thus it would appear that the false position taken by the defendants rested not on any failure of duty on the part of the plaintiffs, but on the fact that they themselves overlooked or failed to note the information contained in the circular letter of October 5. The correspondence shows, as we view it, every element of a contract between the 'parties, which has been fairly and fully performed by the plaintiffs according to its terms; but the evidence fails to disclose any sufficient reason why they should lose a considerable part of the contract price. The learned court' below was right therefore in directing a verdict for the plaintiffs, but was led into error in refusing to enter judgment thereon.

Judgment reversed and judgment is now directed to be entered in favor of the plaintiffs on the verdict; the costs of this appeal to be paid by appellees.