author: Henderson, J.,

text:
    Allegheny v. Stewart, Appellant.

      Road law — Street improvements — Void legislation — Retroactive legis~ lation.

    1. Where abutting property has been benefited by a street improvement made under void authority the lots may be charged for their proportionate shares of benefit received by subsequent legislation. A retroactive enactment can cure a want of authority in levying the tax. The liability of the land to such a charge, does not depend on the question of ownership. It is the benefit which the improvement confers on the land which creates the liability.

      2. When it is decided that retroactive legislation is valid which charges property with benefits conferred under void legislation, no reason exists why the property actually benefited should not be charged with its share of such benefit without regard to the ownership of the property at the time the charge is fixed.
    3. Where a person purchases property around which a city had recently made extensive and costly street improvements, although there is no present valid lien therefor, he is presumed to know that the property is liable to be charged with its proportion of the expense of such improvements, and that this may be done by subsequent as well as by antecedent legislation.
    Argued April 21, 1910.
    Appeal, No. 55, April T., 1910, by defendant, from order of C. P. No. 3, Allegheny Co., Nov. T., 1904, M. L. D. No. 318, making absolute rule for judgment for want of a sufficient affidavit of defense in case of City of Allegheny v. Catherine W. Stewart, with notice to John D. Shafer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Scire facias sur municipal lien for grading, paving and curbing a street.
    Rule for judgment for want of a sufficient affidavit of defense.
    Evans, J., filed the following opinion:
    This is an action based upon a scire facias sur municipal lien, and the case comes before the court on a rule for judgment for want of a sufficient affidavit of defense.
    The facts, which are not in dispute, are as follows:
    In 1894, the city of Allegheny improved Perrysville avenue under an act of assembly which was subsequently declared unconstitutional. In April, 1899, the legislature passed an act of assembly empowering the cities where improvements had been made by virtue of an act of assembly subsequently declared unconstitutional, to assess abutting property to the extent that it is specially benefited to pay the cost of said improvements. In June, 1899, proceedings were instituted and viewers were appointed under said act to assess the benefit and award damages for the improvement of Perrysville avenue. In November, 1900, the report of viewers was filed, and in May, 1904, this report was confirmed absolutely.
    The property in dispute at the time of the' improvement of Perrysville avenue was owned by the Watson Land Improvement Company, which company, by deed dated April 22, 1897, conveyed the property assessed to Catherine W. Stewart, one of the defendants, who by deed of general warranty, dated April 26, 1902, conveyed the same to John D. Shafer, terre-tenant. It is claimed by the defendant that the plaintiff cannot enforce its lien in this case, because to do so would impair the validity of a contract and disturb vested rights. We can conceive of no contract either by the state or by the city of Allegheny, which is impaired by the act of 1899, or by enforcing the lien of this assessment under that act. So far as vested rights are concerned, there is no more disturbing vested rights in enforcing this lien against the land in the hands of Mrs. Stewart or Judge Shafer, than there would have been in enforcing it against the land in the hands of the Watson Land Improvement Company.
    It is urged that when Mrs. Stewart bought from the Watson Land Improvement Company, she took this land free of any lien or claim of the city for an assessment of benefits to pay the cost of the improvement of Perrysville avenue. It is true that when she bought from the Watson Land Improvement Company, under the law, as it existed at the time, the land was free from any lien or claim on the part of the city for the improvement of Perrysville avenue. It was just as free from any such claim or lien in the hands of the Watson Land Improvement Company as it was in the hands of its vendee. The liability of this land for its proportionate share of the cost of the improvement of Perrysville avenue does not depend upon the owner of the land at the time the improvement was made, or at any other time. It is not an incumbrance on the land, because of a debt or liability of the owner, as in the case of a judgment debt. If the land is liable for an assessment to pay a proportionate share of the cost of the improvement of Perrysville avenue, it is liable because the land itself was benefited, and because the legislature has said that the land itself should pay its proportionate share of that cost.
    The right of the state to give municipalities the power to assess land for improvements already made, is not a question in this case. There may be some question growing out of the length of time which has elapsed between the date of the improvement and the date of the passage of the remedial legislation, which, in this case, was about five years. Unquestionably, there is a limit, after improvements have been made, beyond which the legislature ought not to assess the land to pay the cost of the improvement, but we do not think that five years is an unreasonable length of time.
    The right of the legislature to assess the land is absolute, and without reference to whom at the time may be the owner. It is not, as we said, a question of the liability of the owner; it is a question of the liability of the land itself, which has been benefited by the improvement, and for which benefit the law says it must pay.
    “The original assessment for a local improvement proving insufficient, the legislature may, in the absence of special constitutional restriction, authorize a reassessment, and make it operate upon the property benefited, that is, upon all that was originally liable to contribute; and such a law is valid, even against a person purchasing intermediate the assessment and reassessment. Vested rights are not thereby impaired:” 2 Dillon on Municipal Corporations, sec. 814.
    In the case of Tallman v. City of Janesville, 17 Wis. 71, the assessment of taxes in the years 1854, 1855 and 1856 had been declared void by the Supreme Court of the state, and the legislature passed an act providing for the reassessment of taxes for those years. In passing upon the question, identically similar to the one at bar, where the land assessed had passed from the original owner prior to the passage of the remedial legislation, the court said:
    July 20, 1910:
    "The respondents must be presumed to have known when they pm-chased these lands, that the taxes formerly assessed against them had been declared void, and they purchased with full knowledge of the power of the legislature to provide for a reassessment of them.”
    And the assessment was held to be valid.
    Mrs. Stewart knew when she purchased, that Perrysville avenue had been improved. She knew, or ought to have known, that the property she purchased had not paid its proportionate share of the cost of that improvement, and that the legislature had the right to provide that it should pay its share of the cost.
    And now, January, 1909, the above cause came on to be heard on a rule for judgment for want of a sufficient affidavit of defense, and upon consideration thereof, the rule is made absolute.

      Error assigned was the order of the court.

      John W. Thomas, with him M. Wilson Stewart, for appellant.
    The contention of the appellant is that the municipal lien in this case cannot be maintained: Shonk v. Brown, 61 Pa. 320; Lafferty v. Milligan, 165 Pa. 534.

      Lee C. Beatty, with him Charles A. O’Brien and James B. Drew, for appellee.
    -The assessments under the curative Act of April 18, 1899, P. L. 57, are valid: Donley v. Pittsburg, 147 Pa. 348; Chester City v. Black, 132 Pa. 568; State v. Newark, 34 N. J. L. 236; Tallman v. Janesville, 17 Wisconsin, 71; Butler v. Toledo, 5 Ohio St. 225; Hewitt’s App., 88 Pa. 55; Kelly v. Pittsburg, 85 Pa. 170; Olyphant Boro. v. Egreski, 29 Pa. Superior Ct. 116.
   Opinion by

Henderson, J.,

We have passed the point at which it can be successfully contended that the legislature has not the power to legalize a municipal improvement which it might previously have ordered. Where the abutting property has been benefited by a street improvement made under void authority the lots may be charged for their proportionate shares of benefit received by subsequent legislation. A retroactive enactment can cure a want of authority in levying the tax. The liability of the land to such a charge does not depend on the question of ownership. It is the benefit which the improvement confers on the land which creates the liability. The constitutionality of the Act of April 18, 1899, P. L. 57, under which the claim was filed in this case was determined in Marshall Avenue, 213 Pa. 516. Such remedial legislation has been sustained in many cases, among which are Com. v. Marshall, 69 Pa. 328; Hewitt’s Appeal, 88 Pa. 55; Harrisburg v. McCormick, 129 Pa. 213; Chester City v. Black, 132 Pa. 568; Donley v. Pittsburg, 147 Pa. 348; Olyphant Boro. v. Egreski, 29 Pa. Superior Ct. 116. The same doctrine is announced in Butler v. City of Toledo, 5 Ohio St. 225; Tallman v. City of Janesville, 17 Wis. 71, and State v. City of Newark, 34 N. J. L. 236. Local assessments for local benefits are imposed by the state in the exercise of the power of taxation and this tax may be imposed without regard to its effect on private interests. It is said that Mrs. Stewart bought the land free from any lien or claim of the city growing out of the grading and paving of Perrysville avenue because that improvement was made without legal authority and as the land was not subject to a lien in her hands the appellant took it free from liability, but this does not answer the argument of the appellee that the land was liable to be charged with its portion of the benefits growing out of the change in the condition of the street. When it is decided that retroactive legislation is valid which charges property with benefits conferred under void legislation no reason exists why the property actually benefited should not be charged with its share of such benefit without regard to the ownership of the property at the time the charge is fixed. In the appellant’s case it cannot be said that he was without notice at the time he acquired title, for the deed to him is dated April 26, 1902, and the report of viewers was filed in November, 1900. He and his predecessor in title are presumed to have had knowledge that the property about which they were dealing abutted on an avenue on which the city had recently made extensive and costly improvements and they are also presumed to have known that the-property was liable to be charged with its proportion of that expense and that that might be done by subsequent as well as by antecedent legislation. The property received the benefit and it is reasonable that it should bear its share of the cost. There was no such lapse of time between the completion of the work and the enactment of the curative statute as should have moved the court to hold that the period was unreasonably long. On any theory of the presumption of payment or a statute of limitations or the continuance of a lien the intervening period was not unreasonable. The well-considered opinion of the learned judge of the court below renders an extended discussion of the question unnecessary.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Barr’s Estate.

      Practice, O. C. — Auditing judge — Findings of fact.

    1. Where a question is one of fact depending for its decision upon oral testimony, the finding of the auditing judge of the orphans’ court approved by the court in banc, if there is evidence which warranted it, will not be reversed on appeal, unless palpably erroneous.

      Practice, O. C. — Bill of review — Laches—Estoppel. '
    2. A review of the account of an executor based upon the alleged fraud of the executor who was testator’s attorney in inducing the testator to purchase stock in a corporation, is not demandable as matter of right; but the court will require very strong and satisfactory proof of the alleged fraud, where it appears that the petition was not presented until nearly ten years after the purchase of the stock, nearly nine years after testator’s death, and more than four years after the confirmation of the account.
    July 20, 1910:
    3. A bill of review will not be granted on the ground of after discovered evidence where such evidence could have been produced at the audit if due diligence had been observed.
    Argued April 25, 1910.
    Appeal, No. 121, April T., 1910, by Edward A. Barr et al., from decree of O. C. Allegheny Co.-, Feb. T., 1905, No. 74, dismissing petition for bill of review in Estate of Alexander Barr, deceased.
    Before Rice, P. J'., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition to bill of review. Before Hawkins, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree dismissing the petition.

      M. H. Stevenson, with him Wm. C? Boyd, for appellants.

      W. B. Rodgers, "with him Robert B. Petty, for appellee.
   Opinion by

Rice, P. J.,

This is an appeal from a decree dismissing the appellants’ petition after hearing on petition, answer and evidence. The petition was for a review of the account of the acting executor under the will of Alexander Barr, deceased, and its principal object was to charge the accountant with the amount paid by the testator for pertain shares of preferred stock of a corporation in which the accountant and his brother were largely interested as holders of the common stock. At this time the accountant was the decedent’s attorney, and the purchase was made through his agency and was recommended by him. The decedent was past eighty years of age at the time, his eyesight was much impaired, and he was otherwise feeble in body, but the evidence fails to show that his mental faculties were in such impaired condition as to incapacitate him to understandingly engage in a transaction of this kind. The court found that he had business capacity, and it is to be noticed that he at the same time executed his will under which the appellants claim.- The gist of their complaint,- as set forth in their petition, seems to be that the corporation was in financial straits, that the decedent had no knowledge of its condition, except what he received from the accountant, and that “if said Barr consented to said investment, he was induced to do so by the representations of said Balph that the corporation was in a flourishing condition, which representations were untrue.” These allegations as to the financial embarrassment of the corporation and as to misrepresentations made by the accountant were unequivocally denied in his answer. The dispute thus presented was one of fact, and therefore it is important to notice the court’s finding that the business of the corporation (a storage company) proved so successful that additional storage space became necessary and thereupon $15,000 preferred stock was authorized for this purpose and Mr. Barr bought forty shares of the 100 shares actually issued; also, that “there was abundant promise of a successful issue of the business upon which the company had entered at the time the stock was bought.” Upon the question of the accountant’s good faith the learned judge says: “There is no doubt that the Balph brothers had faith in this issue. They had invested their own money on it and were willing to keep it there. If the venture should fail Mr. Barr would take precedence of them by their voluntary concession. In these circumstances it is impossible to see how Mr. Barr could have been misled. On the other hand, subsequent loss of business was not in any sense attributable to James Balph but the result of influences over which he had no control. Other storage companies were organized and patronage divided.” There was sufficient evidence, if believed, to warrant these findings. The learned judge had before him the witnesses, and their character and credibility were subjects for his consideration. Moreover, the exceptions to his findings were duly considered by the court in banc and were overruled. Where a question is one of fact, depending for its decision upon oral testimony, the finding of the auditing judge approved by the court in banc, if there is evidence which warranted it, will not be reversed on appeal, unless palpably erroneous. The very earnest and ingenious argument of appellants’ counsel has not convinced us that the evidence did not warrant the above findings. They precluded a legal conclusion that the accountant, although the attorney of the decedent, was chargeable with the loss of the investment which he recommended. The principles, relating to gifts to attorneys by' their clients and of contracts between attorneys and clients by which the former obtain a benefit, do not seem to us to rule the case, in the absence of satisfactory proof of actual fraud or bad faith in recommending the investment.

This transaction took place in December, 1899, and Alexander Barr died in the follo.wing August. In November, 1904, the accountant advertised the stock for sale, and it was struck off to one Winger for $150, who bought on behalf of the company. A certificate of stock was issued to Winger and he in turn transferred the stock to the company. Assuming that there was no fraud imputable to the accountant in the original transaction, we fail to see how his conduct as executor in disposing of the shares of stock was such as to make him chargeable beyond the amount that he actually received at the sale. And upon this subject we cannot do better than quote the finding and opinion of the learned judge. He says: “When he became executor he adopted the wise policy of postponing sale of the stock in expectation of a rise in value; but his hand was forced by the present petitioners, and the stock was sold at a sacrifice as he had warned them. All the parties interested were given personal notice of the proposed sale and those who were present were importuned to bid, but refused. The amount realized at the sale was not the measure of the value of the stock. The bid was made to cover unpaid debts and administration expenses. The stock was not listed and was owned by some half dozen parties. And while it was bidden in by the company, there has been a standing offer to transfer it to the legatees on repayment of the amount bidden.” There was sufficient evidence to warrant these findings, and they seem to us to be conclusive of the question of the accountant’s liability by reason of his conduct as executor.

The petition was not presented until nearly ten years after the date of the purchase of the stock by the testator, nearly nine years after his death, the probate of his will and the issue of letters-testamentary, and more than four years after the confirmation of the account. It is well settled, by a long line of decisions, that petitions for review in the orphans’ court are governed by chancery rules as to bills of review, and that a review may be had as matter of right only for errors of law appearing on the face of the record or -for new matter that has arisen since the confirmation, and ex. gratia for new evidence discovered after the confirmation that could not have been produced before: Green’s Appeal, 59 Pa. 235; Milligan’s Appeal, 82 Pa. 389, 395; Le Moyne’s Appeal, 104 Pa. 321; Scott’s Appeal, 112 Pa. 427; Priestley’s Appeal, 127 Pa. 420, 432; Bailey’s Est., 208 Pa. 594; Dox’s Est., 227 Pa. 606; Kachline’s Est., 7 Pa. Superior Ct. 163; Bickford’s Est., 16 Pa. Superior Ct. 572; Stetler’s Est., 39 Pa. Superior Ct. 91. This is ’not a case where a review was demandable as matter of right, and the application being addressed to the sound discretion of the court, unreasonable delay, without excuse, was a circumstance which could not be ignored. After such lapse of time as we have alluded to, very strong and satisfactory reasons should be shown to move the court to disturb the decree: Finley’s Est., 196 Pa. 140. The delay is a persuasive reason why a court exercising equity powers should move slowly and require full and satisfactory proof of the facts necessary to give the court jurisdiction: Priestley’s Appeal, 127 Pa. 420; Kachline’s Est., 7 Pa. Superior Ct. 163. Not only does the evidence fail to show clearly and satisfactorily that the accountant was chargeable with the amount paid by the testator for the stock, or that his conduct as executor debarred him from claiming as a credit the difference between its appraised value and the price realized at the sale, but the learned judge suggests that the evidence could, by the exercise. of ordinary diligence, as readily have been obtained before as after confirmation of the account. A full consideration of the case leads us to the same conclusion. The testator’s physical and mental condition, the accountant’s relation to him, his part in the transaction, the financial condition of the corporation, the liens upon its real estate, the interest of the accountant and his brother as stockholders, the accountant’s declarations after he became executor as to the unsalableness of the stock, were facts which could have been ascertained by the exercise of reasonable diligence. “The new proof must be proof which could not possibly have been used at the time when the decree was made: ” Strong, J., in. Hartman’s' Appeal, 36 Pa. 70. “The new evidence subsequently discovered should be such as could not have been produced by the use of due diligence before: ” Sharswood, J., in Green’s Appeal. Having regard to this principle, as Avell as to the merits, we are not convinced that the court erred in dismissing the petition. As was said in Scott’s Appeal, and repeated in Priestley’s Appeal, “Something is due to the finality of judicial proceedings.”

The decree is affirmed at the costs of the appellants.


text:
    O’Brien’s Estate
    July 20, 1910:
    (No. 1).

      Guardian and ward — Surcharge—Mistake as to surcharge.

    Where the orphans’ court surcharges a guardian in an amount stated, and it appears from an examination of the whole record that a portion of such amount was made up of items as to which no exception had been taken, and no evidence heard, the appellate court will deduct such portion from the total surcharge, and affirm the decree as to the balance, if it appears that the accountant showed great carelessness and lack of appreciation of the duties devolving upon him.
    Argued April 14, 1910.
    Appeal, No. 39, April T., 1910, by T. J. Lawton, guardian, from decree of O. C. Allegheny Co., Feb. T., 1909, No. 30, surcharging him as guardian of the Estate of Michael A. O’Brien.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Decree modified.
    Exception to' account of guardian. Before Hawkins, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree surcharging the guardian.

      John E. McCalmont, for appellant.
    A guardian is liable only for gross negligence or willful default and if he act in good faith will be protected: Bryson’s Est., 13 Lanc. Bar, 45; Eyster’s App., 16 Pa. 372; Clark’s Est., 39 Pa. Superior Ct. 445.

      Edward Schreiner, for appellee.
   Opinion by

Rice, P. J.,

In the account filed by the guardian upon his resignation of the trust there appear thirty-one credit items for “cash advanced” amounting in the aggregate to $492, which do not indicate the specific purposes for which the money was advanced. The guardian ad litem, appointed by the court to examine the account and report his suggestions as to the several items, reported, after examination of the account and the vouchers, that twenty-one of these items, specifying them by their respective dates and amounts, should not be allowed unless the guardian could show that the money advanced on the several dates was used for necessaries for the ward. These items aggregated $321.34. He also reported against the allowance of certain other items of the’account, but raised no objection as to any other of the cash items heretofore alluded to. The aggregate of these items not excepted or objected to by the guardian ad litem or by anyone is $170.66. Of these items all but two were for cash, amounting to $140.06, advanced prior to November 19, 1906. The two items, amounting to $30.00, were for cash advanced in September, 1908. At the audit, as appears by the official report of the proceedings sent up with the record, this occurred:

“By Mr. Schreiner: There is one bond that was never properly filed; as to one of the estates, the bond was never properly qualified, but there is no exception to this.
“By the Court: Confine yourself to the exceptions.
“By Mr. McCalmont: I want to show when we became responsible.
“By the Court: We will only hear matters excepted to. Take up the items that are excepted to.
“ Q, The account filed at Nos. 30 and 31 show the debits and credits—
“By the Court: Take up the exceptions and call attention to all the items that are excepted to and have them explained. Is the exception to the fact of payment or to the irregularity?
“By Mr. Schreiner: To the irregularity of it.”

It is argued that in view of the foregoing it was erroneous to charge the accountant with the payments not excepted to and as to which the court refused to hear evidence. To this appellee’s counsel answers that, as the decree fails to show what particular items the surcharge was based on, appellant has no right to assume that it included any of these items. But if it be true that neither the decree nor the findings accompanying it show how the surcharge was made up, justice and regularity of procedure require that the record be remitted to the court below in order that this essential to a proper review of the correctness of the decree be made to appear. The decree is “that the accountant be surcharged with amount paid,

viz.:..................................... $462.00

Add thereto balance as per account......... 274.53

Balance due ward...................... $736.53 ”

Of course, it would be impossible to determine from the decree alone what payments the court had in mind in making the surcharge of $462. But it is inferable with reasonable certainty, from the accompanying statement and opinion, that the payments referred to were those which the accountant alleged were made for the maintenance of the minor and were embraced under the head “cash advanced.” This is the subject discussed in the opinion as the main question, and no allusion whatever is made to the’ credit items of the account which show on their face that they were for payments made for other specified purposes. It is true there were exceptions to many of this class of items, namely, to the items for professional services of attorneys, for interest on Crook’s mortgage, for penalties on taxes not paid when due, commissions on fund received from John Whitney, guardian, and for collection of rent. But.there is nothing in the statement or opinion to indicate that the court intended to sustain any of these exceptions; on the contrary, the plain inference is that the credit items to which these exceptions apply were not disallowed. It is reasonably certain, therefore, that the surcharge of $462 was made up of the advances alleged to have been made for maintenance, and must have included at least $140.66 of items that were not excepted to and concerning which the court declined to hear evidence. We feel constrained, therefore, to sustain the assignments of error so far as they relate to this portion of the surcharge. While the evidence produced did not show dishonesty on the part of the accountant, it did show gross lack of appreciation of the duties devolving upon him, and we cannot see, upon a view of all of the circumstances, that the court committed error, except in the particular to which we have referred. It seems probable, from our investigation of the very unsatisfactory evidence produced by the accountant, that he is fairly entitled to the credits to which the decree as amended by us will give him. But the evidence fails to show satisfactorily that he is entitled to further credit.

The decree is modified and amended by reducing the surcharge from $462 to $321.34, and reducing the balance for distribution from $729.53 to $588.87, and as thus amended the decree is affirmed; the costs of the appeal to be paid out- of the aforesaid sum for distribution.


text:
    O’Brien’s Estate
    (No. 2).

      Guardian and ward — Accounts—Surcharge.
    The appellate court will not modify a decree of the orphans' court surcharging a guardian in an amount stated, where there is no ground for certain inference that in arriving at the surcharge the court included credit items as to which no exception had been taken.
    Argued April 14, 1910.
    Appeal, No. 40, April T., 1910, by T. J. Lawton, from decree of O. C. Allegheny Co., Feb. T., 1909, No. 31, surcharging him as guardian of the Estate of Paul O’Brien, a minor.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to account of guardian. Before Hawkins, P. J.
    The opinion of the Superior Court states the case.

      July 20, 1910:

      Error assigned was decree surcharging accountant.

      John E. McCalmont, for appellant.

      Edward Schreiner, for appellee.
   Opinion by

Rice, P. J.,

The appellant was guardian of this minor, as well as of his brother Michael, and the account was audited at the same time. The guardian charged himself with $1,545.24 and claimed credits amounting to $1,179.28, thus showing a balance due the ward of $365.96. In the first decree the court surcharged the accountant “with amount paid ward, viz. $620,” added thereto the balance as shown by the account $365.96, and thereby decreed a balance due the ward of $985.96. From that balance the clerk’s oosts, $7.00, were deducted, thus leaving $978.96 payable to the succeeding guardian. Upon consideration of the exceptions filed by the guardian, the court by its final decree increased the allowance of credit to the accountant of $10.00 per month for maintenace of ward, viz. $242.50, deducted this from the balance shown by the first decree and thus made the true balance payable to the succeeding guardian $736.46. It is claimed that in arriving at this result the court included in the surcharge items that were not excepted to and concerning which the court declined to hear evidence. We are unable to sustain this, contention. The aggregate of the items of the account for “cash advanced” was $626.10. The guardian’s contention was that these payments were for maintenance of the ward. The amount of these items that were excepted to was $498.33, and the amount of those not excepted to was $127.77. The surcharge, as has been seen, was $377.50, and this was less than the aggregate of the items excepted to. There is no ground for certain inference in this case, as there was in the preceding case, that in arriving at the surcharge the court included credit items that were not excepted to. There might have been such inference .from the first decree, but it was corrected by the final decree. Whilst the evidence did not show that the guardian had not paid out the money as claimed by him, it did show that he had failed to exercise that care that was incumbent upon him in seeing that it was appropriated properly, and, as pointed out in the opinion of the learned judge, the allowance finally made to the guardian on account of expenditure for maintenance of his ward was as liberal as the very unsatisfactory evidence warranted. We find no sufficient ground for disturbing this decree.

The decree is affirmed at the costs of the appellant.


author: Morrison, J.,

text:
    Dunn v. Pittsburg Jewelry Manufacturing Company, Appellant.

      Affidavit of defense — Practice, C. P. — Warranty.
    1. In. an action to recover for a large number of articles of jewelry sold and delivered, an affidavit of defense is insufficient which alleges a warranty, but does not show whether the warranty was written or verbal, and which is evasive and uncertain in respect of the goods alleged to have been warranted.
    2. Such an affidavit is also insufficient which avers that the defendant immediately upon discovering the inferiority of the goods notified plaintiff thereof. The defendant is bound to show that he exercised the right to rescind within a reasonable time, and he must therefore set out sufficient facts to show the court what was the actual time at which he gave the notice of rescission.
    3. Such an affidavit is also fatally defective if it furnishes no basis whatever for assessing the damages suffered by the defendant on account of the inferiority of the goods.
    Argued April 13, 1910.
    Appeal, No. 2, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., First T., 1909, No. 249, making absolute rule for judgment for want of a sufficient affidavit of defense in case of M. J. Dunn and Milton S. Rodenberg, copartners, trading as Dunn & Rodenberg, v. Pittsburg Jewelry Manufacturing Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    July 20, 1910:
    Affirmed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      A. Seder, of Alpern & Seder, for appellant,
    cited: Kaufman v. Cooper Iron Mining Co., 105 Pa. 537; Leechburg Co. v. Jennings Bros. & Co., 145 Pa. 559; Wilson v. Belles, 22 Pa. Superior Ct. 477; Newton Rubber Works v. Kahn, 186 Pa. 306.

      S. Leo Ruslander, with him A. Leo Weil and Charles M. Thorp, for appellee,
    cited: Dailey v. Green, 15 Pa. 118; Genesee Paper Co. v. Bogert, 23 Pa. Superior Ct. 23; Gould v. Gage, 118 Pa. 559; Ogden v. Beatty, 137 Pa. 197; Weed v. Weinberger, 12 Pa. Superior Ct. 12; American Watch Tool Co. v. Reed Mfg. Co., 18 Pa. Superior Ct. 24.
   Opinion by

Morrison, J.,

In this action of assumpsit for the price of goods sold and delivered, it is not disputed that plaintiff’s declaration was sufficient and it called for an affidavit of defense. Upon rule and argument, the court below held the affidavit insufficient and' refused to permit a supplemental affidavit to be filed because the defendant’s counsel failed to comply with the rule and order of the court upon that subject. The sole question for determination is raised by the single specification of error: “That the court erred in making absolute the rule for judgment for want of a sufficient affidavit of defense.”

The plaintiff’s claim was for goods sold and delivered to defendant, amounting to $579.40, with credits for goods returned admitted amounting to $189, leaving the balance claimed $390.40. The goods sold were vest chains at $6.50 and $12.00 per dozen; chains at $8.13 per dozen; neck chains at $12.00 per dozen; vest chains at $12.33 per dozen; vest chains at $13.50 per dozen and rings at $6.50 per dozen.- These goods were purchased and received by the defendant on different dates from September 5, 1907, to May 4, 1908. The affidavit of defense states in. a vague way a representation made on September 5, 1907, by one of the partners in the plaintiff firm, who, it is alleged, “represented to defendant that they, said plaintiffs, would sell to defendant 10 year gold-filled chains; that is, gold-filled chains guaranteed to keep color for at least 10 years, at $6.50 per dozen, and 20 year gold-filled chains, that is, gold-filled chains guaranteed to keep color for at least 20 years, at $12.00 per dozen.” The language above quoted is evasive and uncertain in that it cannot be determined whether the words “that is, gold-filled chains guaranteed to keep color for at least 10 years at $6.50 per dozen, and .... that is, gold-filled chains guaranteed to keep color for at least 20 years at $12.00 per dozen,” are the words of the member of the plaintiff’s firm or the construction put upon what he actually did say by the person making the affidavit of defense. “Defendant relying upon said representations, then and there purchased gold-filled chains in the quantities specified in exhibit 'A’ and continued to purchase, from time to time, said alleged gold-filled chains. That a mere inspection of said chains cannot and does not disclose the quality thereof, and defendant did not and could not ascertain that said chains were not in fact gold-filled until defendant had sold said chains to its trade and its customers had then returned said chains to defendant, for the reason that they had become black and were not as represented by plaintiff. That when said chains were returned, defendant had them tested, and found them to be electroplated on a cheap metal and not gold-filled, as represented. That the chains delivered were of a grossly inferior quality to those sold by plaintiff, and are now black and tarnished. That immediately on discovering the inferiority of said chains, defendant notified plaintiffs thereof and offered to return the chains to them, but said plaintiffs refused to accept the same, and said chains are still at defendant’s place of business, subject to plaintiff’s order and at their risk. That plaintiffs’ chains in defendant’s possession in a blackened and tarnished condition invoice about $500, and defendant’s customers are still continuing to return the same to defendant almost daily.”

The above comprises substantially all- of the affidavit of defense and we quite agree with the court below that it is insufficient to prevent judgment under the rule found in Gould v. Gage, 118 Pa. 559; Ogden v. Beatty, 137 Pa. 197; Weed v. Weinberger, 12 Pa. Superior Ct. 12; American Watch Tool Co. v. Reed Mfg. Co., 18 Pa. Superior Ct. 24. In the first place the allegation of a warranty is very doubtful and the affidavit is evasive and uncertain in respect of the goods alleged to have been warranted. It is not clear that the alleged warranty applied to any goods except those purchased on September 5, 1907. The language of the alleged warranty is not clearly stated, nor does it appear whether it was written or verbal.

“The mere averment of a warranty, without more, as we said in Kaufman v. Cooper Iron Mining Co., 105 Pa. 537, is bad; the affidavit should disclose whether it was express or implied, set forth its terms, and state when, by whom, and by what authority it was made:” Gould v. Gage, 118 Pa. 559. To the same effect is Dailey v. Green, 15 Pa. 118; Genesee Paper Co. v. Bogert, 23 Pa. Superior Ct. 23.

The averment that immediately upon discovering the inferiority of said chains defendant notified plaintiff thereof, etc., is insufficient. The defendant was bound to show that it had exercised its right to rescind the purchase by reason of defects in said goods within a reasonable time. What is a reasonable time when the facts are not in dispute is for the court. This averment seems to be a legal conclusion only. The defendant and the court might not agree on what constituted a reasonable time. The affidavit fails to disclose the dates when the delivery of the goods in question was made; when the goods were returned by its customers; when it discovered the defects and when and how it gave notice to the plaintiff. If the defendant had specifically stated these facts in the affidavit, the court could determine whether the notice was given within a reasonable time. Again, it is clear that the defendant received the goods and placed the same in its store and sold a considerable number of the chains to various customers. And the affidavit does not disclose how many chains were sold and delivered by the defendant, how many were still in the hands of purchasers and how many had been returned.

The defendant’s averment that it has in its possession in a blackened and tarnished condition chains invoicing about $500 and customers are still continuing to return the same to defendant’s almost daily, is vague and confusing. The plaintiff only claimed for $390.40 worth of goods sold and delivered to the defendant which had neither been returned nor paid for. But the affidavit avers that the defendant has in its possession $500 worth of chains purchased from the plaintiff and the affidavit discloses that there were chains still in the hands of defendant’s customers. These facts, we think, strongly indicate that the defendant received the plaintiff’s goods from time to time for a period extending from September 5, 1907, to May 4, 1908, and during all that time sales were being made from that stock and chains being returned to defendant, and this negatives the idea that there is any merit in defendant’s averment that plaintiff was notified of the inferiority of the chains and an offer made to return the same and that said chains are still at defendant’s place of business. How many of them are there and how many of them are in possession of defendant’s customers we cannot learn.from the affidavit. If we conceded that the defendant has sufficiently averred a warranty, the affidavit furnishes no basis whatever for assessing the damages suffered by the defendant on account of the inferiority of the chains. The defendant having received the goods and sold a portion of them to its customers, must pay either the cqntract price or the market value and should, therefore, have set forth in the affidavit of defense the market value of the chains: Ogden v. Beatty, 137 Pa. 197. Mr. Justice McCollum, in that case, speaking for the Supreme Court, said: “When goods are sold with a warranty of quality, and are retained by the customer, the measure of damages for the breach of the warranty is the difference between the market valué of the goods contracted for and of the goods delivered. In an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto. If an affidavit of defense is required, it should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured. All the elements of a defense should appear with reasonable certainty in the affidavit, and, if any fact essential to complete the defense is omitted, the affidavit is insufficient.”

In the present case it is very apparent, from the affidavit of defense, that the defendant was not at any time in a position to rescind the purchase and return the goods, because portions of the chains had been sold to defendant’s customers and the evasive language used warrants the inference that at no time was the defendant in a position to rescind the contract and return all of the goods. Therefore, the defendant stood in the position of the defendant in Ogden v. Beatty and was bound to file an affidavit of defense that would meet the requirements of the rule therein stated.

The specification of error is overruled and the judgment is affirmed.


author: Morrison, J;,

text:
    B. F. Lee Company v. Sherman, Appellant
    (No. 1).

      Appeals — Assignments of error — Nonsuit—Answer to point — Motion for judgment n. o. v.

    1. The refusal of a compulsory nonsuit cannot be assigned for error.
    2. An assignment of error will not be considered which does not quote the judge’s answer to a point totidem verbis, although it contains the point.
    3. When the refusal of a motion for judgment n. o. v. is assigned as error, the motion must be printed in full, and the answer of the court should also be quoted and printed with the motion.
    4. The action of the court in refusing a motion for judgment n. o. v. cannot be assigned for error where no exception has been asked for and obtained to such ruling.

      Mechanic’s lien — Delivery of material — Diversion of material.

      5. Where a material man delivers to an owner material for a particular house, he cannot be deprived of his right to a mechanic’s lien against such house, because the owner has diverted the material to another building.
    Argued April 13, 1910.
    Appeal, No. 7, April T., 1910, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 85, on verdict for plaintiff in case of B. F. Lee Company v. George W. Sherman, with notice to Jacob Weinman, Jr., and Joshua Weinman, terretenants, and all other persons in possession.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Haymaker, .J.
    Verdict and judgment for plaintiff for $498.93. Defendants appealed.

      ■Errors assigned were in the following form:
    The appellants in this case, the defendants below, by their attorneys, Brown & Stewart, assign as errors to the judgment of said common pleas in said case as follows:
    1. The court erred in overruling the plaintiff’s motion for a compulsory nonsuit upon the trial of said case.

      July 20, 1910:
    2. The court erred in refusing to instruct the jury as requested by the defendants, on the trial of said case, that the verdict of the jury must be for the defendants.
    3. The court erred in instructing the jury in the judge’s general charge, using the following language: “If the plaintiff in this case delivered to the defendant the materials spoken of as having been delivered on the 9th and 13th of May, for these two particular houses, it would not, of course, make any difference in the plaintiff’s right to recover if the defendant diverted that property to some other building. That is, if the plaintiff delivered it to the defendant they were not bound to follow it to the house or stay there and see that it actually was put into the houses and used in these particular houses. If the defendant used it for some other purpose, or diverted it, the plaintiff would have a right to recover, notwithstanding that the property did not go into the house for which he had delivered it to the defendant.”
    4. The court erred in refusing the defendants’ motion for judgment for the defendants non obstante veredicto.

      Brown & Stewart, for appellants.

      W. S.' Dalzell, of Dalzell, Fisher & Hawkins, with him Herriott & Morgan, for appellee.
   Opinion by

Morrison, J;,

This case, No. 7, April Term, 1910, and No. 8, samé term and year, were sci. fa. sur mechanics’ liens, and the cases being precisely alike, were tried together in the lower court and argued together here. This opinion will be filed in No. 7, but what is said in it will apply to the other case at No. 8, and in the latter case we will simply file a short order disposing of the specifications of error and of the judgment. In both cases there were verdicts in favor of plaintiff for fixed sums of money and judgments having been entered thereon, the defendants appealed.

The first specification of error is, “The court erred in overruling the plaintiffs motion for a compulsory non-suit upon the trial of said case.” This specification is bad as is shown by a vast number of cases in both of our appellate courts. See Rockwell v. Eldred Borough, 7 Pa. Superior Ct. 95; Reece v. Rodgers, 40 Pa. Superior Ct. 171. In the Eldred Borough case we said: “Neither the entry nor the refusal of a compulsory nonsuit can be assigned for error; a refusal to take it off is the only action respecting it which can be reviewed. This has been decided so often that citation of authorities is unnecessary.”

The second specification of error offends against our rule XV, which reads: “Where error is to the charge of the court, or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment.” This specification does not quote the point nor the answer, but merely gives the counsel’s conclusion as to what was done by the court. See Ewing v. Cottman, 9 Pa. Superior Ct. 444; and Crawford & Moyes v. McKinney, 165 Pa. 605. “An assignment of error will not be considered which does hot quote the judge’s answer to a point totidem verbis, although it contains the point:” Hall v. Phillips, 164 Pa. 494.

The third specification cannot be sustained for the reason that it, in our opinion, complains of a correct statement of the law. In support of this we need only refer to the last sentence of sec. 3 of the mechanic’s lien Law of June 4, 1901, P. L. 431 (see p. 433): “Materials placed on or near the curtilage appurtenant to the structure or other improvement, or delivered to the owner or contractor for use therein, shall be presumed to have been used therein.” We think the record contains sufficient evidence to warrant the trial judge in submitting to the jury the question of whether or not the materials for which the liens were filed were delivered to the defendants as averred by the plaintiff. And that question was fairly and adequately left to the jury.

The fourth' and last specification is, “The court erred in refusing the defendants’ motion for judgment for the defendants non obstante veredicto.” This specification is bad as the motion ought to have been printed in full, and what the court said in disposing of it should also have been quoted and printed with the motion. This, is not done and we are not even referred to where the motion and the order of the court thereon can be found. But there is another reason why we cannot consider this assignment. In International Savings & Trust Co. v. Printz, 37 Pa. Superior Ct. 134, we held that under the Act of April 22, 1905, P. L. 286, the parties asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception, otherwise an appeal from the action of the court will be quashed; that the court is not required to grant an exception and place it in the record unless it is asked for by the losing' party. This undoubtedly means that the losing party should ask for the exception at the time the decree is filed or with reasonable promptness thereafter. See McGinnis v. St. Paul Fire, etc., Ins. Co., 38 Pa. Superior Ct. 390.

Having concluded to overrule all of the specifications of error, we are not called upon to consider several matters discussed in the appellant’s argument but which are not properly raised for our consideration.

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


text:
    B. F. Lee Company v. Sherman, Appellant
    July 20, 1910:
    (No. 2)
   Opinion by

Morrison, J.,

For the reasons given in an opinion this day filed between the same parties at No. 7, April Term, 1910, ante, p. 557, the specifications of error are all overruled and the judgment is affirmed.


text:
    Bellevue Borough v. Gibson, Appellant.

      Road law — Boroughs—Street improvement — Act of May 16, 1891, P. L. 71.

    1. The Act of May 16, 1891, P. L. 71, is limited in its application to street improvements completed within two years preceding the approval of the act and those in progress of completion at the date of approval.

      Road law — Boroughs—Street improvements — Omission of ordinance— Remedial ordinance — Act of May 16,1891, P. L. 75.

    2. Where a petition is presented in accordance with the provisions of the Act of May 16, 1891, P. L. 75, for the grading, curbing and paving of a street of a borough and the street is improved under a contract made by the borough without the ordinance provided by the act, the borough councils may subsequently pass a remedial ordinance and thus legalize the contract so as to sustain municipal liens filed against abutting properties for the cost of the improvement.
    3. Where an improvement of a street is made by the officers of a municipality without authority of ordinance, councils may, by subsequent ratification, validate and adopt the unauthorized act.
    Argued April 26, 1910.
    Appeal, No. 131, April T., 1910, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 558, for defendant on case stated in suit of Bellevue Borough v. Robert Gibson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability on a municipal lien.
    The facts are stated in the opinion of the Superior Court.
    The court below in an opinion by Shaper, J., entered judgment for plaintiff for $335.73. Defendant appealed.

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

      Noah W. Shafer, with him L. M. Shafer and Geo. J. Campbell, for appellant,
    cited: Scranton Sewer, 213 Pa. 4; Bingaman v. Pittsburg, 147 Pa. 353; Omega Street, 152 Pa. 129.
    July 20, 1910:

      David L. Starr, for appellee,
    cited: Dowling v. McGregor, 91 Pa. 410; Hutchinson v. Pittsburg, 72 Pa. 320; Pepper v. Phila., 114 Pa. 96; Dewhurst v. Allegheny, 95 Pa. 437.
   Opinion by

Morrison, J.,

This was a scire facias on a municipal lien and after an affidavit of defense was filed, the facts were presented to the court in a case stated, from which we gather the following facts:

That the borough of Bellevue, Allegheny county, Pennsylvania, is a municipality, chartered and existing under the laws of the state of Pennsylvania; that Bayne avenue is a public street in said borough; that on October 2, 1900, a petition signed by a majority in number and interest of owners of property abutting on said street' was presented to the council of said borough praying for the grading, curbing and paving of said street or avenue; that in pursuance of said petition an ordinance authorizing the grading, curbing and paving of said street or avenue was introduced in the said councils; that it does not appear upon the minutes or records of the said, councils or elsewhere that any ordinance was passed by said councils or signed by the burgess of said borough authorizing the grading, curbing and paving of said street or avenue prior to September 3, 1902; that it was not made to appear that any such ordinance was actually passed or advertised in reference to the grading, curbing and paving of said street or avenue prior to September 3, 1902.

That on September 3, 1902, a contract was entered into by the authorities of the said borough of Bellevue for the grading, curbing and paving of said street, and that the contractor proceeded with and completed said work in July, 1903; that on July 27, 1903, the said borough passed a certain remedial ordinance, without petition, for the purpose of legalizing the said contract for the grading, curbing and paving of said street or avenue; that said ordinance was duly passed, signed by the burgess and properly posted and a copy of the same is attached to and made a part of the case stated.

That at No. 603, October Term, 1903, the said borough filed a petition under the Act of May 16, 1891, P. L. 75, praying for viewers to ascertain the cost and assess the benefits and damages arising out of the improvement of said street; that the said viewers so appointed entered upon their duties and their report was filed in court and confirmed nisi on October 24, 1903, and the said petition, report and record is referred to and made a part of this case stated.

That on July 1, 1904, a municipal claim or lien was filed by the said borough against the appellant as owner or reputed owner at No. 1,153, July Term, 1904; upon which the scire facias in this case was issued; that the defendant has not paid the amount assessed against his property on account of the said improvement. The case stated closes with an agreement that the court may enter judgment either for the plaintiff or for the defendant in accordance with the law as found by the court upon the facts stated, with the right to either party to appeal.

The learned court below entered a, final judgment against the defendant in the sum of $335.73, with costs, to which the defendant excepted and appealed.

In our opinion the petition mentioned in the case stated gave the borough councils jurisdiction, and it cannot be doubted that the councils, with the approval of the burgess, had .power to have passed a valid ordinance providing for the grading, curbing and paving of said street or avenue. The real question raised for our consideration is the effect of the said remedial ordinance which was duly passed by the borough council on July 27, 1903.

We find in the record three assignments 'of error. The first is that, “the court erred in entering judgment for the plaintiff upon the case stated.” Second, “the court erred in finding that the ordinance of the borough of Bellevue attempting to ratify the improvement without a compliance with the Act of May. 16, 1891, P. L. 71, was valid and binding, notwithstanding the board of viewers did not proceed to make the assessments upon the basis of a quantum meruit.” Third, “the court erred in its order appointing viewers in that it did not direct the ascertainment of the cost of the grading, paving and curbing as provided by the Act of May 16, 1891, P. L. 71.” We will dispose of the second and third assigmnents first.

A casual examination of the act therein referred to shows that it has no application whatever to the present case and, therefore, those assignments cannot be considered. The title of the act limited it to improvements completed or now in process of completion, and the tenth section of the act reads: “Proceedings under this act shall only include the ascertainment, assessment, levy and collection of the costs, expenses, and damages and benefits of all improvements completed within two years preceding the date of the approval of this act, and of those now in process of completion, when and as the same are completed;” etc. This act was approved on May 16, 1891, and its title and the act itself absolutely limits its application to improvements completed within two years preceding that date and those in process of completion when the act was approved. Therefore, counsel for appellant are in error in supposing that the proceedings in the present case were or could have been under said act. Undoubtedly the petition and appointment of viewers and their proceedings in assessing damages and benefits were rightly under the provisions of the Act of May 16, 1891, P. L. 75. • Counsel for appellant have misapprehended the purpose and scope of the Act of May 16, 1891, P. L. 71. It is only remedial as to the limited cases that come within its provisions. The second and third assignments are overruled. This leaves for consideration only the question raised by the first assignment.

In Shiloh Street, McCormick’s App., 165 Pa. 386, the Supreme Court held, as stated in the syllabus: “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate power.

“Where a change of grade of a street is made by the officers of a municipality without authority of ordinance, councils may, by subsequent ratification, validate and adopt the unauthorized act.

“In such a case where viewers are appointed to assess benefits occasioned by the work, and the report of the viewers is confirmed at the instance of the city, which accepts the work, and issues a scire facías to recover the assessments, the ratification of the unauthorized act is complete.” See the opinion of Mr. Justice Green and the authorities therein cited.

In Tarentum Borough v. Moorhead, 26 Pa. Superior Ct. 273, we held: “Unquestionably the borough had power to make that change and it is not intimated either in the affidavit of defense or in appellant's brief that any abuse of discretion was involved in the transaction or that it was tainted with fraud or that it was not justified by the conditions existing at the time. This being so, the principle enunciated in numerous cases is applicable, that a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate powers, and that such ratification need not necessarily be by resolution or ordinance, but may be implied from the acceptance of the work and formal assertion in judicial proceedings of a claim founded upon it.” Judge Rice, who wrote that opinion, -cites, in support of this proposition, a large number of cases. If such ratification may take place without a resolution or ordinance it would seem that the ratification in the present case by an ordinance duly passed, approved and signed, and published, ought not to be questioned, and this is especially so in regard to a matter so clearly within the power of the borough councils as the grading, etc., of a street.

In City of Chester v. Eyre et al., 181 Pa. 642, it is expressly decided that “a city which has authority to authorize a contract for curbing, but does not expressly do so, may, after the work has been performed, validate the action.”

In the present case the defendant received the benefit of the grading, paving and curbing and it is not pretended that there was any fraud or overcharge or any abuse of discretion connected with the matter. The only ground of complaint is the omission of the council to pass a proper ordinance and record and advertise the same before letting the contract. In these circumstances we entertain no doubt about the power of the council to pass the remedial ordinance nor as to its sufficiency to validate the proceedings.

The learned counsel for the appellee has cited authorities and argued with force that the confirmation of the report of viewers is res adjudicata as to the appellant. And further, that the latter is estopped from questioning the validity of the proceedings. We have so much confidence in the effect of the remedial ordinance and the regularity of the other proceedings that we are willing to rest our decision upon those grounds, and it is therefore unnecessary to decide the questions of res adjudicata and estoppel.

The assignments of error are all overruled and the judgment is affirmed at the costs of the appellant.


author: Orlady, J.,

text:
    Hodges v. McGovern, Appellant.

      Practice, C. P. — Amendments—Justice of the peace — False arrest— Constable.

    1. Where a justice of the peace and a constable are sued in their official capacity for false arrest without notice in writing delivered to the justice thirty days before the suit, as required by the Act of March 21,' 1772, 1 Sm. L. 370, an amendment, charging that the arrest was made in pursuance of a conspiracy and to compel'payment of a judgment founded upon a contract, and that the arrest was made without a writ, will not be permitted to be filed, inasmuch as the amendment is an entire change in the cause of action.
    July 20, 1910:
    2. While the statutes of amendments are to be construed liberally so as to give effect to their clearly defined intent and to prevent the defeat of justice through mere mistake, they will not be allowed to the prejudice of parties by introducing a new cause of action or bringing in a new party, or changing the capacity in which ho is sued.
    Argued April 26, 1910.
    Appeal, No. 148, April T., 1910, by defendants, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 874, on verdict for plaintiff in case of Thomas-F. Hodges v. Charles C. McGovern and Charles W. Campbell.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass for unlawful arrest and false imprisonment. Before Carnahan, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500.

      Errors assigned were (1) allowance of amendment. and (3) in refusing binding instructions for defendants.

      Charles A. O’Brien, for appellants.

      Denis A. Behen, for appellee.
   Opinion by

Orlady, J.,

In 1907 the plaintiff purchased a set of books from the Weden-Frick Book Company under an installment contract which provided that the title to the property should remain in the vendor until the consideration was fully paid, and having defaulted in his payments, the vendor brought suit in trover for the value of the goods and obtained a judgment therefor before Charles C. McGovern, an alderman, for $99.00. Hodges failed to pay this judgment, and as alleged by him a capias was issued thereon directed to Charles W. Campbell, a constable, and he was taken into custody by the constable and detained in the office of the alderman for several hours.

This action of trespass was brought by him against McGovern as an alderman, and Campbell as a constable, for unlawful arrest and false imprisonment. The record •shows that the action is against them in their official capacity, as the title to the action and the statement in the court below designates them as such, and it is admitted that no notice in writing had been delivered to the aider-man at least thirty days before the suing out of the same, clearly and explicitly containing the cause of action, as required by the Act of March 21, 1772, 1 Sm. L. 364, 2 Stewart’s Purdon, 2162.

Evidence of a second arrest was excluded, the offer being to show that the plaintiff was arrested on a warrant and capias, but was subsequently discharged on a habeas corpus, so that this record has to deal with only the first arrest and detention. The statement filed shows that the complaint was based upon the illegal acts of 'the defendants done and performed by them as alderman and constable, and with the record in that condition it is practically conceded that there could not have been any recovery. However, an amendment was permitted, which alleged that the defendants wickedly, maliciously and unlawfully conspired together for the purpose of arresting the plaintiff and depriving him of his liberty in order to compel him to pay a certain judgment which was founded upon a contract; and that McGovern, as alderman, and Campbell, as constable, pursuant to this conspiracy, without writ or warrant, did arrest the plaintiff. The trial judge disposed of this contention as follows: “My first impression was that possibly this old act of 1772 had some bearing on the facts connected with what is called the first arrest; because plainly, if what the defendants claim is true, the arrest was made under color of law, or under color of the official positions held by these defendants respectively, and I thought that perhaps the act of assembly might apply to such a case as that, but I am satisfied that the act does not apply to such a case, and that the alderman and constable are not protected by that act if what the plaintiff claims be true, because they did not make this arrest in the exercise of their office but made it without any authority at all, no warrant having been issued by the alderman, and the constable having no warrant or writ of execution upon which he could base his authority to make the arrest;” and held that the alderman was not entitled to the notice provided for in the act of 1772. The case was submitted to the jury, which returned a verdict of 1500 against the defendants, designating them by their respective offices.

We cannot agree with this interpretation of the testimony. The plaintiff testified, that when he was in his office, Campbell came to him and said: “ ‘ I want you.’ I said: ‘ What for? ’ He said: ‘ Come over to the alderman’s office and you will find out.’ I said: ‘Well, can’t I see my attorney?’ We went up and explained to Mr. Behen that I was wanted, arrested, taken and wanted over at Aider-man McGovern’s office. Mr. Behen said ‘ I will be over there just as soon as I am through here in this case.’ I went in custody of the constable over to the alderman’s office, the constable had said I was under arrest.” The plaintiff accompanied the constable to the alderman’s office and remained there by direction of the constable from 3:30 to 5 o’clock in the afternoon, waiting for the return of his attorney. The attorney testified that he had appeared and asked the alderman “what the trouble was about, he said, ‘ I have arrested Hodges and he has got to pay that bill or I will put him in jail if he does not.’ I said, ‘ Do you have authority to do this? You had better go slow.’ He said that he did have the authority to do it, and that he would commit Hodges to jail if he didn’t pay the bill.” The constable testified that he arrested the plaintiff herein on an execution, with a capias clause, which he exhibited on the witness stand, but which is not printed in the paper-book.

To justify this amendment, it is urged by the appellee, that the defendants were sued under a misapprehension that a .tort had been committed by the alderman and constable in their respective official capacities; but that on the trial, it was developed by the alderman’s docket that no writ had been issued, and that the amendment changed the form of action so as only to charge them with a tort committed by them under color of their office and not by virtue of the same. This distinction is entirely too refined. While there was some controversy on the trial as to the correctness of the alderman’s docket, both the alderman and the constable testified that at the time the plaintiff herein was taken into custody, a writ had been issued and was then in the hands of the constable, although not properly noted on the docket, and in submitting the question to the jury the court said: “If such a.writ was issued and the constable had it, he is protected as well as the alderman and there could be no recovery against them. If such a writ was not issued, and this exhibit was an afterthought, and this plaintiff was arrested without a writ of execution with a capias clause, then the constable and alderman, — for the alderman seems to have been expecting him at his office, — if you believe the testimony produced on the part of the plaintiff, exceeded their authority, and are answerable in damages.”

In Trego v. Lewis, 58 Pa. 463, it was said: “Undoubtedly the courts will never permit a party to shift his ground or enlarge its surface by introducing a new and different cause of action, especially when by reason of the statute of limitations, or an award of arbitrators, or for some good reason, it would work an injury to the opposite party.” In Kille v. Ege, 82 Pa. 102, it was said: “Amendments depriving the opposite party of any valuable right shall not be allowed.”

Under the pleadings, at the time the amendment was allowed, the lack of notice required by the act of 1772 was a bar to the action; and under the undisputed testimony, the present plaintiff was taken into custody by an officer of the law, notified that he was under arrest, then taken to the office of an alderman, who confirmed the statement of the constable that he had “arrested Hodges and he has got to pay that bill, or I will put him in jail if he doesn’t.” These were acts which could only be interpreted as being by virtue of their offices of alderman and constable, and riot under mere color thereof. Furthermore, Hodges was represented before the alderman by his attorney, who demanded his release on account of the irregularity of the proceeding, coupled with a plea for extension of time, and a promise of payment of the judgment, which was refused by the alderman, and the threat as above quoted was then made. While the statutes of amendments are to be construed liberally so as to give effect to their clearly defined intent, and to prevent the defeat of justice through mere mistake, they will not be allowed to the prejudice of parties, by introducing a new cause of action or bringing in a new party, or changing the capacity in which he is sued: Grier Bros. v. Assurance Company, 183 Pa. 334; Soperstein v. Salsberg, 17 Pa. Superior Ct. 288; Peterson v. Delaware River Ferry Company, 190 Pa. 364; Garman v. Glass, 197 Pa. 101.

The amendment allowed in this case was not a mere change of form but an entire change in the cause of action. In Holmes v. Penna. R. R. Co., 220 Pa. 189, the court adheres to the rule laid down in Cassell v. Cooke, 8 S. & R. 268, in relation to the cause of action: “The true criterion is whether the alteration or proposed amendment is a new or different matter, another cause of controversy; or whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case” and cites a number of cases in which the distinction has been observed. The change in the form of this action being substantial, and depriving the defendant of a valid defense as the record stood before the amendment was allowed, it was error to permit it to be made. Though the plaintiff did not request a view or hearing of the warrant, he had the right to assume that the officer, who was well known to the plaintiff as such, had a legal warrant for his apprehension, and he acted in that belief by going with him to the alderman’s office, and was there again assured by the alderman, who was also well known to be such, that he was ■ under arrest. His liberty was interfered with by the constable and alderman, who acted by virtue of their offices, and the undisputed evidence in this record shows that these officers were being sued in their official capacity. In this view of the case it was error to allow the amendment, and the assignments of error are sustained; the judgment is now reversed for the reason that the alderman was entitled to the notice as required by the act of 1772.


author: Oklady, J.,

text:
    White v. Miller, Appellant.

      Contract — Sale—Delivery of goods — Rescission.
    1. Where goods are sold under an agreement that they are to be delivered at the purchaser’s residence, and if satisfactory to him on delivery, they are to be accepted and paid for at once, if not, they are to be taken away by the plaintiff, the purchaser may, if he finds the goods defective after delivery, immediately rescind the contract and demand that they be removed. He is under no obligation to remove the goods to a storage warehouse if they are not taken away by the seller. ' 2. In such a case where suit is brought for the contract price of the goods four days after the seller had been notified of the rescission, evidence that the purchaser had used some of the goods after the suit had been brought, is inadmissible.
    3. The plaintiff cannot supply the want of a valid claim after the commencement of the action by the acquisition or accrual of one during the pendency of the action, nor can a plaintiff recover in a pending action on a cause of action which occurred after the institution of such action, even though such cause of action relate to the subject-matter of the pending action.
    Argued April 20, 1910.
    Appeal, No. 52, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 709, on verdict for plaintiff in case of B. White v. Oliver Miller, Jr.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Swearingen, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $334. Defendant appealed.

      Error assigned was in giving binding instructions- for plaintiff.

      Robert Woods Sutton, with him Watson & Freeman, for appellant.
    As the place of delivery was the defendant’s -residence, that would also be the place of rejection, and defendant was not bound to return the goods to any other place. It was the duty of the plaintiff to take them away: Rohn v. Dennis, 109 Pa. 504; Schaefer v. Lange, 37 Pa. Superior Ct. 617.
    Even a use of all of a consignment by the defendant may be explained by evidence of actual nonacceptance, and is not, as a matter of law, conclusive as to the acceptance: Youghiogheny Iron, etc., Co. v. Smith, 66 Pa. 340; Kahn v. Klabunde, 50 Wis. 235 (6 N. W. Repr. 888); Springfield Engine Stop Co. v. Sharp, 184 Mass. 266 (68 N. E. Repr. 224); Sharer v. Dobbins, 195 Pa. 82; Dawes v. Peebles, 6 Fed. Repr. 856.
    The use of certain articles of a’ consignment is still less conclusive evidence of an acceptanee of the whole: Inman Mfg. Co. v. American Cereal Co., 124 Iowa, 737 (100 N. W. Repr. 860); Cohen v. Pemberton, 53 Conn. 221 (2 Atl. Repr. 315); Holmes v. Gregg, 66 N. H. 621 (28 Atl. Repr. 17).

      Charles A. O’Brien, for appellee.

      July 20, 1910:
   Opinion by

Oklady, J.,

This action of assumpsit was brought to recover the value of certain household furniture that was delivered to the defendant under the following circumstances: The defendant, having been recently married, went with his wife to the plaintiff, who was a dealer in furniture, and after having been shown a number of articles by a salesman, was introduced to the plaintiff, who requested him to sign a written order for certain goods, and to pay a small sum on account of the intended purchase. This the defendant refused positively to do, but stated that if the proper furniture should be placed in his house in first-class condition, he would pay for all of it as soon as it was delivered.

On the following day (August 14, 1907) the furniture was delivered at the defendant’s home inclosed in heavy burlap covering. The same evening when first opened certain faults and defects were noticed in a number of the articles. These objections were communicated to the plaintiff the next day who made some changes and substitutions to remedy the objections that were-made; but the changes were not satisfactory to the defendant, and after several futile attempts to have the plaintiff retake the property, on August 24 he sent a telephone communication, and later in the day a letter, as follows: “Confirming telephone conversation of this a. m. beg to advise you that the furniture placed in my residence at 211 Grant Avenue, Bellevue, is defective, and the replaced articles are also defective, therefore being useless and unsatisfactory, I hereby notify you to remove the same.” On August 26 he again notified the plaintiff in writing that the goods were at his home subject to his orders, and that payment was refused on account of the goods being defective and not as represented.

This suit was brought on August 30 to recover the value of the property, and on the trial a verdict for $334, was rendered by direction .of the court in the plaintiff’s favor for the reason that although it appeared the defendant had promptly notified the plaintiff that the goods were not satisfactory, and demanded that they should be removed from his premises, yet they had been allowed to remain there and had been used by him, and by reason of his so keeping and using them, the only question that could be raised at the trial was the value of the goods, which was an issue not raised by the pleadings in the case. In this we think there was error. There was a conflict of testimony, but inasmuch as the court gave binding instructions to the jury for the plaintiff, we must assume that the jury might at least have found the contract between the parties to be as testified to by the defendant and his wife, to wit, that the goods were to be delivered at the defendant’s residence, and if satisfactory to him, on delivery, they were to be accepted and paid for at once, if not, they were to be taken away by the plaintiff.

It is practically conceded that the place of delivery was the defendant’s residence, and it would follow that that would be the place of rejection. The defendant was not bound to return them to any other place, and if his contention be the correct one, as soon as proper notice was received by the plaintiff of the rescission of the contract, it was then his duty to remove the goods: Rohn v. Dennis, 109 Pa. 504; Schaefer v. Lange, 37 Pa. Superior Ct. 617.

The testimony of the defendant and his wife is quite specific and positive that the goods were not only to be delivered at their residence, but on account of the controversy as to the kind and quality of the goods shown to them at the store, they reserved the right to pass upon the goods when delivered at their residence, and had been assured when the goods were selected that the articles should be satisfactory to them. This raised at least a question of fact which should have been submitted to the jury under proper instructions. The fact that the property was retained and used is not conclusive of an acceptance under the admitted and proved facts.

The unqualified rescission of the contract, and the plaintiff’s refusal to accept the goods, did not impose any duty on the defendant to protect the plaintiff’s property by taking it to a storage warehouse. He denied having any title to it, and could not warehouse it as the property of the plaintiff, for the reason that the plaintiff insisted that there had been a complete delivery to the defendant: Estey Co. v. Dick, 41 Pa. Superior Ct. 610.

After a tender and refusal to take back goods, it is not the duty of the vendee to retain it and await the pleasure of the vendor. He may dispose of it or use it, and all that the vendor can in reason ask would be a credit for its actual market value: Iron & Coal Company v. Smith, 66 Pa. 340; Sharer v. Dobbins, 195 Pa. 82. At the time the contract was rescinded, and payment, refused with a request that the goods be removed, no use had been made of the property, and but four days later this suit was instituted for the contract price, and no claim was made for recovery on a quantum meruit. The testimony as to the use of the property was confined to a few articles, and whatever cause of action the plaintiff may have under the undisputed testimony in this case, it arose after this suit had been brought: Roud v. Griffith, 11 S. & R. 130.

The plaintiff cannot supply the want of a valid claim after the commencement of the action by the acquisition or accrual of one during the pendency of the action, nor can a plaintiff recover in a pending action on a cause of action which occurred after “the institution of such action, even though such cause of action relate to the subject-matter of the pending action. As was. said in McLaughlin v. Parker, 3 S. & R. 144, “It is painful to reverse a judgment on a point which may be foreign- to the merits, but when error stares us in the face, a reversal is unavoidable. If this action was really commenced before the debt was due, justice would require that it be dismissed, with costs to the defendant.”

The testimony as to the making of the contract and the quality of the property being conflicting, the case should have been submitted to the jury.

The assignment of error is sustained. The judgment is reversed and a venire facias de novo awarded.


author: Head, J.,

text:
    Star Brewing Company’s License.

      Liquor law — Appeals—Certiorari—Facts—Remew—Sales—Brewer’s license.

    1. On a writ of certiorari to the refusal of the lower court to grant a brewer’s license, the appellate bourt will accept as established the facts as stated by the court below.
    2. Where a brewing company having a license to sell beer only at its brewery in a certain borough, employs agents in other places to take orders for beer, and agrees to deliver, or cause to be delivered beer to purchasers at the town or place where the order is given, the contract is executed only when the beer is delivered to the purchaser at the place where the order was given, and the company in making such a sale, is guilty of selling liquor without a license; and for such action in the past the court may refuse to the company a license to sell beer in the future.
    Argued April 19, 1910.
    Appeal, No. 173, April T., 1910, by the Star Brewing Company; from order of Q. S. Washington Co., Nov. T., 1909, No. 11, refusing application for a brewer’s license of the Star Brewing Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Application for brewer’s license. McIlvaine, P. J., made the following order:
    And now, February 25, 1910, it appearing to the court that the said Star Brewing Company has had a license similar to the one applied for, for the year commencing May 1, 1909, and that under that license it employed agents on a monthly salary, who were located at Canonsburg, West-land, Houston, Cherry Valley, Burgettstown, Avella, Manifold, and many other places in the county separate and distant' from the brewery, to solicit trade;',that said agents at the places where located contracted to sell- or took orders for beer and accepted the price of said beer from the purchasers or persons ordering the same, and there agreed for the Star Brewing Company that it would deliver or cause to be delivered said beer to said purchaser at the town or place where the order'was given in a cask or bottles which were to remain the property of the said brewing company and to be retaken by it after the beer contained therein was consumed; that the said agents transmitted the money received by them respectively from each of the persons giving them the orders with their respective names and the number or description of the house or place at which the beer of each purchaser was to be delivered; that the said Star Brewing Company, without knowing anything about the character, age or habits of the persons whose names were sent to it as having ordered beer, set apart at its brewery casks and cases to fill said orders and tacked a card on each package, on which was written the name of the person and the place where the beer was to be delivered; that those packages were delivered to the Ben Reynolds Express Company, a corporation whose business it was to transport packages, and said express company, under a contract or traffic arrangement it had with the said Star Brewing Company, delivered the beer to the purchasers at the town or place or coal works where they gave the order and paid the money to the agent, and after the beer was consumed collected and returned “the empties” to the said Star Brewing Company; and it appearing further that this applicant has heretofore been warned by this court that this manner of business was the cause of disorder and complaint and amounted to a sale of its products at places other than at the place licensed; and the court, being of opinion, after due consideration of the evidence, that it would be a wise and proper exercise of the discretion vested in it so to do, orders, adjudges and decrees that the license herein applied for by the said Star Brewing Company be and the same is hereby refused.

      Error assigned was the order of the court.

      T. F. Birch, for appellant.
    Where the only reason assigned for the refusal of the license is not a valid one under the statute, and there is no other ground for refusing it, the license should be granted: Gemas’s License, 169 Pa. 43; Johnson’s License, 156 Pa. 322; Gross’s License, 161 Pa. 344; Mead’s License, 161 Pa. 375; American Brewing Co.’s License, 161 Pa. 378; Knoblauch’s License, 28 Pa. Superior Ct. 323; DeHaven’s License, 31 Pa. Superior Ct. 335.
    July 20, 1910:
    The court erred in holding that the sales in this case on orders solicited by the agents “amounted to a sale of its products at places other than at the place licensed:” Garbracht v. Com., 96 Pa. 449; Shriver v. Pittsburg, 66 Pa. 446; Com. v. Fleming, 130 Pa. 138; Com. v. Hess, 148 Pa. 98; Com. v. Munk, 1 Pa. Superior Ct. 479; Com. v. Guja, 28 Pa. Superior Ct. 58; Com. v. Pollak, 33 Pa. Superior Ct. 600.

      J. R. McCreight, with him E. S. Marriner, H. D. Hamilton and R. W. Knox, for appellee.
    The Star Brewing Company of Washington, Pa., under its contract assumed the burden of delivery of the beer, and the contract was not complete when the beer was delivered to the common carrier but was complete when the beer had been placed in the hands of the purchaser: Com. v. Pollak, 33 Pa. Superior Ct. 600; Com. v. Tynnauer, 33 Pa. Superior Ct. 604; Com. v. Hecirrionic, 39 Pa. Superior Ct. 510.
    There is nothing in this case to distinguish it in a material way from Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Reynoldsville Distilling Co.’s License, 34 Pa. Superior Ct. 269, and American Brewing Co.’s License, 161 Pa. 378.
   Opinion by

Head, J.,

■The appellant plants its case upon the single proposition that from the undisputed facts as found by the learned judge below he drew an erroneous legal conclusion, and hence refused its application for a brewers’ license.

We have before us but a common-law writ of certiorari. We must, therefore, accept as established the facts as stated by the learned judge below in the decree appealed from; especially so where, as here, the learned counsel for appellant concedes in his printed brief the absence of any dispute as to the facts. This is his language: “There is no conflict of testimony nor findings of the court on disputed questions of fact to be investigated.”

As'we view the case, the controlling facts are all contained in the following brief summary: The brewing company, the appellant, having a license to sell only at its brewery in the borough of Washington, employed agents at other places in the county to solicit trade; “that said agents, at the places where located, contracted to sell or take orders for beer and accepted the price of said beer from the purchasers ordering the same, and there agreed for the Star Brewing Company that it would deliver or cause to be delivered said beer to said purchaser, at the town or place where the order was given,” etc.

It is not necessary at this late day that we should discuss at length the fundamental principles that become operative in cases of sales of personal property. An ex-ecutory contract of sale does not become an executed one until there has been a delivery, actual or constructive, because delivery is an essential element in the sale of personal property. The time, the place, the manner of delivery, just like the purchase price, the time and mode of its payment, are matters of contract between buyer and seller. Where the contract, in so far as it has been expressed in words, is silent on the subject of delivery, then the courts must resort to certain rules of construction, to the acts of the parties, and to such other evidence as may be available in order to ascertain the intention and meaning of the contracting parties as to this essential matter.

Many cases have thus arisen in which the courts have declared, for instance, the general principle that a delivery of personal property by a vendor to a common carrier, consigned to the vendee at a distant place, is a delivery to the vendee at the point of shipment, and the common carrier is the agent of the vendee. In such cases it is needless to add that the vendor parts with his title the moment he delivers the goods to the carrier, and if lost or destroyed during carriage, the loss must fall on the vendee. But in no reported case or in no statement of text-book law that has been brought to our notice has it ever been declared that such a principle would apply to cases where the parties by their contract had stipulated otherwise. But a few citations from the many authorities on this subject will suffice.

In Braddock Glass Co. v. Irwin & Co., 153 Pa. 440, Mr. Justice Sterrett, in reversing the court below, used the following language: “This instruction ignores the recognized principle that where- goods are to be carried by the vendor to a certain place and there delivered to the vendee, the carrier is the agent of the former and not of the latter; and that the vendor is responsible for the negligence or misconduct of his agent: McNeal v. Braun, 53 N. J. Law, 617; Sneathen v. Grubbs, 88 Pa. 147; Scott v. Wells, 6 W. & S. 357; Benj. on Sales (1883), sec. 1040. In the latter, the learned author, after referring to the general principle, that, where the vendor, is bound to send the goods to the purchaser, delivery to a common carrier is a delivery to the purchaser, etc., proceeds to say: 'If, however, the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risks of the carriage, the carrier is the vendor’s agent.’ ”

In Dannemiller v. Kirkpatrick, 201 Pa. 218, Mr. Justice Mestrezat said: “If a vendor agrees to deliver at a certain place, the property is at his risk until it is so delivered” (cases cited). After showing that the contract between the parties in that case was not so clear on the subject of delivery as to enable the court to determine, as a question of law, the manner in which delivery was intended to be made, the learned justice proceeds: “It is well settled that in the absence of an agreement to the contrary, when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser. . . . This rule, however, does not obtain where the parties have otherwise stipulated in their agreement. ... It, therefore, becomes a question in cases of this character as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute it is a question of law for the court, but if the evidence is conflicting the question must be determined by a jury” (cases cited). Further discussion of the legal principles involved in this case would be unavailing.

If then there can be no dispute as to the two principles, one or other of which must be applied according as the contract expressly determines or is silent as to the place of delivery, can there be any doubt, in the light of the facts in this case, as they are stated by the learned judge below, which principle must be applied? We again quote from his statement: “That said agents, at the places where located (away from the borough of Washington), there agreed for the Star Brewing Company, that it would deliver or cause to be delivered said beer to said purchasers, at the town or place where the order was given.” This language is so plain that it needs no construction. It construes itself, and, to our minds, establishes beyond question a contractual undertaking on the part of the vendor to deliver the goods to the purchaser at the place where the order was given. Until such delivery was made the contract remained executory.'

We need only add that upon inspection of the record we are all of the opinion that the learned court below committed no reversible error.

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