author: Orlady, J.,

text:
    Langford v. People’s Light Company of Pittston, Appellant.

      Evidence — Witnesses—Expert witnesses — Value of land — Injuries to land by gas.

    1. In an action to recover for the loss of trees and grass, and damages to the soil of land, caused by the escape of gas from a gas company's pipe, where witnesses called by plaintiff establish their competency to express opinions as to land values, and no objection is made to their competency, the subject-matter of their testimony becomes a matter for the jury in the light of the facts to which they testify.
    July 20, 1910:
    2. The market, value of land is not a question of science and skill upon which only experts can give an opinion. Persons in the neighborhood may be possessed of sufficient knowledge of the market value of the property, with the location and character of the land in question, and whether their opinion has any proper ground to rest upon, or is mere conjecture can be brought out on cross-examination.
    Argued March 7, 1910.
    Appeal, No. 22, March T., 1910, by defendant, from judgment of C. P. Luzerne Co., May T., 1906, No. 495, on verdict for plaintiff in case of Joseph Langford v. People’s Light Company of Pittston.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Fuller, J.
    The facts appear by the opinion of the Superior Court. Verdict and judgment for plaiiitiff for $1,000. Defendant appealed.

      Errors assigned were (1, 2) rulings on the evidence of. W. C. Southern, and Joseph Langford, plaintiff, sufficiently set forth in the opinion of the Superior Court.

      John T. Lenahan, with him Richard B. Sheridan, for appellant,
    cited: Friday v. Penna. R. R. Co., 204 Pa. 405.

      H. J. Mahon, with him Evan C. Jones, for appellee,
    cited: Ardesco Oil Co. v. Gilson, 63 Pa. 146; Penna., etc., Railroad Co. v. Bunnell, 81 Pa. 414; Schuylkill River, etc., R. R. Co. v. Stocker, 128 Pa. 233; Smith v. Penna. R. R. Co., 205 Pa. 645; Hope v. R. R. Co., 211 Pa. 401; Lally v. R. R. Co., 215 Pa. 436; Catlin v. Northern Coal & Iron Co., 225 Pa. 262.
   Opinion by

Orlady, J.,

The plaintiff had been for some years before bringing this action the owner of a dwelling house and lot in the borough of West Pittston, which was occupied by him and his family as a homestead. On the front part of the lot were located three elm trees which had been planted there for purposes of shade and decoration, and had grown to be of large size.

In May, 1903, the defendant company dug a trench in the street near the plaintiff’s residence, about seven feet distant from the trees, in which it laid a main pipe for its gas service. About a month after the laying of the pipe, the leaves on the trees showed signs of blight or mildew, and it was soon thereafter discovered that the gas was escaping from a leak in the pipe, and this resulted in killing the grass and these elm trees. This action was brought to recover damages for this injury to his property, the plaintiff alleging that the defendant was negligent in the construction and maintenance of its gas pipes, and a verdict of $1,000 was rendered in favor of the plaintiff.

On the trial the questions of fact submitted were: 1. Were the trees killed by the gas escaping from the defendant’s pipe? 2. Was the result due to the defendant’s negligence or lack of proper care under the circumstances. 3. Was the market value of the property diminished, and if so, how much, by the loss of the trees.

This appeal is brought by the defendant, assigning for error the incompetency of two witnesses who were called by the plaintiff, and who testified to the value of the property as affected by the escaping gas. The witness Sutherland had lived in West Pittston for over forty years, and was familiar with the plaintiff’s property, knew its condition before the loss of the trees and afterwards; knew of and testified as to sales of property in the next block, and in a general way knew of the prices at which real estate was held in the locality. ' There were no actual sales testified to in the block in which the plaintiff’s property was situated, but from his knowledge of the property, its character and location, and the value at which similar properties were held, he testified that the market value of the property had been about $16,000 to $18,000, and that after the trees were killed the value was reduced at least from $1,500 to $2,000, and that this idea was based upon the facts testified to by him and from the sales of property made shortly subsequent to the loss of these trees.

The testimony excepted to as represented by the second assignment, standing alone, was unquestionably incompetent. At the conclusion of his examination, the defendant’s counsel asked to have the testimony of the witness struck out “as to the depreciation of the value of the property,” the question and answer being: “Q. The reason why you fix $2,500 and the only reason is because you would be willing to sell it for $2,500 less, is that it? A. That is it.” Preceding this, however, are twenty pages of examination and cross-examination, in which the general knowledge of the witness in regard to the location and character, the market value of this property and other properties in the neighborhood, with and without the trees, and the condition of the ground caused by the escaping gas, as well as the value of the trees, was thoroughly gone over, and as stated by the court in its opinion refusing a new trial: “'The witness was found to be qualified as an expert and gave his testimony clearly and unequivocally, without any objection to his competency.” At most then his cross-examination on this point would affect the credibility and not the competency of his opinion. The jury was explicitly instructed to disregard any estimate of the value based upon sentiment or association, and the verdict being for only $1,000 demonstrates that the jury disregarded the witness’s estimate of the damage done to the property.

There was no substantial contention on the part of the defendant that this injury to the plaintiff’s property had not been caused by gas escaping from the main in the street, which had been either so negligently constructed or maintained as to permit the gas to escape therefrom and affect the ground along the whole front of the plaintiff’s property, which had resulted in the destruction of the grass and trees.

It was urged in the argument that the injury to the property was not limited to the mere loss of the trees, but that the surface and subsoil of the lot were so impregnated and soaked by gas as to prevent any duplication of the trees and herbage in that soil. And in the examination of these witnesses, it is apparent from the record that their competency as such was not questioned. The excerpts from their testimony represent but a small part of their examination, which had been admitted without objection. The jury was very carefully instructed in regard to the proof adduced, the credibility of the witnesses, their interest and intelligence, and the measure of damages. There having been no objection made to the general competency of these two witnesses, the subject-matter of their testimony became a matter for the jury in the light of the facts to which they testified. The rights of the defendant were fully safeguarded by the instructions not to consider anything else than the fair market value of the property, before and after the injury, and to discriminate carefully between market value and sentimental value, and reject the latter.

As was said in Lally v. Central Valley R. R. Co., 215 Pa. 436: “The market value of land, even in cities, is not capable of exact proof, like that of stock or the staple commodities of trade, such as flour or sugar, or pig iron. At best it is a matter of opinion not strictly of experts, but of those who are shown to be familiar with the neighborhood, the situation and availability of the particular tract; the buying and selling value as shown by such sales or transactions as have occurred under circumstances to make them a fair basis for inference as to particular matter in issue. In neighborhoods where sales are few and at long intervals it would be unfair and impracticable to require as full and detailed knowledge on the part of witnesses as in other localities, where sales are frequent and of public interest and attention. Opinion of any kind is a poor quality of evidence, and where admissible at all is only so because it is the best that is available. In all cases of competency on that subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case.” And in Catlin v. Northern Coal & Iron Co., 225 Pa. 262: “In such case, a witness must have such knowledge of the subject-matter as can reasonably be expected in view of the circumstances, the frequency or infrequency of sales, the location, adaptability of the land for any available purpose, and such other things as enter into a proper estimate of the market value.”

The witness Sutherland testified to sufficient facts in regard to his knowledge of the property, and its value, as compared with his own purchase of land and other sales of land to entitle his testimony to some consideration by the jury. He was submitted to a rigorous cross-examination, and the effect to be given to his testimony was for the jury. So also in regard to the witness Lang-ford, who was examined without objection as to his competency.

The market value of land is not a question of science and skill upon which only experts can give an opinion. Persons in the neighborhood may be possessed of sufficient knowledge of the market value of the property, with the location and character of the land in question, and whether their opinion has any proper ground to rest upon, or is mere conjecture can be brought out on cross-examination: Penna., etc., Railroad Company v. Bunnell, 81 Pa. 414; Smith v. Penna. R. R. Co., 205 Pa. 645; Hope v. Phila. & Western R. R. Co., 211 Pa. 401.

In Friday v. Penna. R. R. Co., 204 Pa. 405, upon which the appellant relies, Mr. Justice Potter said: “The question of the competency of the witness, is always for the court, but in deciding it should have the benefit of every reasonable aid, and nothing could be more effective than a cross-examination, within proper limits. Aside from this, if the opposing counsel are not satisfied with the correctness of the statements of the witness as to his ability to give an opinion they are justified in asking for an immediate opportunity to apply the test of cross-examination, and it should be allowed.”

In the case before us, the witnesses met the requirements imposed by law, and showed themselves properly qualified to express an opinion as to the value of the land in question, and the subject-matter of their testimony was properly left to the jury, but gave the plaintiff considerably less than either of these witnesses fixed as their idea of the damages.

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


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Nagle, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Gi’ade crossing — • Contributory negligence — Nonsuit.
    In an action against a railroad company to recover damages for injuries to a cab at a grade crossing, a nonsuit is properly entered, where the evidence shows that the plaintiff’s driver stopped at a point twenty or twenty-five feet from the crossing and looked and listened, that he then proceeded without again stopping, looking or listening to the track where he was struck; and that there was no embankment, and no standing cars nor obstructions nor anything to prevent him from seeing or hearing the train which struck him, if he had used proper precautions.
    Argued March 8, 1910.
    Appeal, No. 30, March T., 1910, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1904, No. 1,291, refusing to take off nonsuit in case of C. L. Nagle v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a cab. Before Lynch, P. J.

      July 20, 1910:
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order refusing to take off nonsuit.

      Thomas F. Farrell, with him S. J. Strauss, for appellant.
    The line of cases by which the case at bar is ruled, is exemplified by the following which in their facts are more or less similar to those in our case: Penna. R. R. Co. v. Ackerman, 74 Pa. 265; McNeal v. Ry. Co., 131 Pa. 184; Ellis v. R. R. Co., 138 Pa. 506; Neiman v. D. & H. Canal Co., 149 Pa. 92; Ely v. Ry. Co., 158 Pa. 233; Hoffmeister v. R. R. Co., 160 Pa. 568; Arnold v. R. R. Co., 161 Pa. 1; Davidson v. Ry. Co., 171 Pa. 522; Seifred v. R. R. Co., 206 Pa. 399; Cromley v. R. R. Co., 208 Pa. 445; Armstrong v. R. R. Co., 212 Pa. 228.

      J. B. Woodward, with him F. W. Wheaton, for appellee,
    cited: Gangawer v. R. R. Co., 168 Pa. 265; Moose Brew. Co. v. R. R. Co., 36 Pa. Superior Ct. 549.
   Opinion by

Head, J.,

About an hour or two after midnight in the early part of October an employee of the plaintiff undertook to drive his employer’s cab across a grade crossing of the defendant railroad company, known as the Barney street crossing, in. south Wilkes-Barre. He had been in the same service for a period of some months and was quite familiar with the crossing, indeed, had gone over it but a short time before on the same night, as we understand the testimony. On his return trip he approached the railroad from the south. There was an electric street light just at the point where the highway reached the railroad tracks. There were three tracks. Having crossed two in safety, he was struck while on the third by an engine pulling a train of freight cars moving, as he says, at the rate of from twenty to thirty miles an hour. The driver of the cab escaped with slight injuries, but this action is brought by the plaintiff for the damage done to his property.

Taking the estimate of the driver as to the rate of speed at which the train was traveling, no negligence could be imputed to the defendant on that account. The driver admitted that he heard, or thought he heard the engine bell ringing just before he stopped, which he testifies he did at a point from fifteen to twenty-five feet south of the track. He says that he then saw or heard nothing to indicate the approach of a train. He then declares that he did not stop again, and that he did not listen any further, but assuming that the crossing was safe, he drove on to the track and his cab was immediately struck as he testifies. It is true that he denies that he heard any warning whistle, and it is on the presumed truth of the inference therefrom that no whistle was blown that the alleged negligence of the defendant company, if such there was, must rest.

Assuming, however, for the purpose of this case, that there was evidence to go to the jury to warrant a finding of such negligence, the learned trial court entered a compulsory nonsuit which he afterwards refused to take off, and this is the sole error assigned. The ground of the nonsuit was the contributory negligence of the plaintiff’s employee. The conclusion that he was guilty of contributory negligence is not based on testimony given by the defendant, nor does it result merely from some of the testimony of the plaintiff’s single witness to the occurrence where the opposite inference might be drawn from other portions of his testimony. As to the facts upon which the conclusion rests, his testimony is clear and plain, and is not contradicted either by himself or by any other witness.

The witness declares that from the point at which he stopped before moving on to the tracks he could see in daylight, in the direction from which the train came, a distance “of fifty or 100 yards or something like that.” The highway on which he was traveling contained in itself no elements of danger, such as embankments, unguarded bridge, or other like thing to require his attention. It was not incumbered with the traffic of passing vehicles. It does not appear that any other train on any of the other railroad tracks was in the vicinity so as to lead to any confusion of mind on his part as to the sights or sounds of which his senses, if alert, must have warned him. From the point where he stopped clear on to the point on the track where he was struck the view was open and unobstructed. If a freight train was approaching so near that it struck him in the manner and at the time he indicates, the noise necessarily incident to its movement would of necessity be heard for a considerable distance at that quiet hour of the night. Nevertheless the plaintiff's driver, on whose testimony he rests his case, testified as follows: “Q. After stopping some twenty or twenty-five feet, did you stop again before you got to the track? A. No, sir. Q. Did you look again before you got to the track after you made that one stop? A. No, sir. Q. Did you listen again after you made that one stop until you got to the track? A. I did not have time to listen. Q. At that distance, twenty-five feet away, you proceeded straight on without stopping, looking or listening? A. Yes, sir. Q. Is that right? A. I had no reason to listen. I had already stopped for that purpose.”

Had this driver, after he had stopped, looked and listened at the point he described, physically closed his eyes and plugged his ears, and then driven on to the railroad track and thus met with the accident he described, no one would deny that his own negligence had contributed to his injury. Preoccupation of the mind or an idle wandering of the faculties, resulting from weariness, drowsiness or other like cause, often leads to a temporary suspension' of the functions of sight and hearing as completely as if the eyes had been actually closed or the hearing obstructed. There is high authority for the proposition that they who have eyes but see not cannot escape responsibility.

This case, like every other of its class, presents its own peculiar facts. But the controlling principle has been clearly stated in Myers v. Railroad Co., 150 Pa. 386; Urias v. Railroad Co., 152 Pa. 326; Gangawer v. Railroad Co., 168 Pa. 265, and kindred cases.

The driver knew the crossing was dangerous, not only generally as are all grade crossings, but specially because of the curve which, to the eastward, cut down the view of an approaching train to a few hundred feet. He had been warned that a train was in the vicinity because he heard the engine bell. He so declares. If so, it is not of much consequence whether he heard the whistle or not as both are operated for the single purpose of giving warning of the approaching train. It may be that the curve so deadened the sound of the bell that at the point and moment he stopped, he did not hear it. But this did not warrant him in dismissing the warning he had received and driving on the track oblivious of what both eyes and ears must have revealed had he used them. As was said by Mr. Justice Dean in Gangawer v. Railroad Co., 168 Pa. 265, “previous care in stopping does not absolve from subsequent negligence, any more than care at a crossing one day will dispense with care the next.”

Applying the principles of these cases to the facts before us, we cannot reach any other conclusion than that the learned court below was right in entering the nonsuit and refusing to take it off.

We have examined with care the cases cited by the learned counsel for appellant, particularly Armstrong v. Penna. R. R. Co., 212 Pa. 228. The facts of these cases, however, differentiate them from the one now before us, and none of them, as we view them, conflicts with the conclusion we have reached.

Judgment affirmed.


author: Rice, P. J.,

text:
    Flemming, Appellant, v. Bush.

      Costs — Witness fees — Acts of February 10, 1866, P. L. 188, February 23, 1889, P. L. 8, and June 1, 1907, P. L. 364 — Statutes— Repeal.

    1. The general Act of June 1, 1907, P. L. 364, entitled, “An Act to increase the pay of jurors and witnesses in this commonwealth” and providing á witness fee of $1.50 per diem, does not repeal the local Act of February 10,1865, P. L. 133, applicable to Adams county providing for the payment of a witness fee of $1.00 per diem to witnesses residing beyond one mile of the county seat.
    2. A general affirmative statute, without negative words, will not repeal a previous particular one upon the same subject, unless there be something to show a legislative intent to repeal, beside the fact that the provisions of the former are different from those of the latter.
    Argued March 15, 1910.
    Appeal, No. 30, March T., 1910, by plaintiffs, from order of C. P. Adams Co., Aug. T., 1909, No. 154, sustaining appeal by defendant upon taxation of costs in the case of William B. Flemming et al. v. B. F. Bush, Receiver of the Western Maryland Railway Company.
    Before Rice, P. J., Henderson, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from taxation of costs. Before Swope, P. J.
    The case turned on the question as to whether witness fees should be taxed at the rate of 11.00 per day as provided by the local act of February 10, 1865, or $1.50 per day under the general act of June 1, 1907.
    The court sustained „the appeal and directed that the fees should be taxed according to the act of 1865.

      Error assigned was the order of the court.

      W. C. Sheely, with him John D. Keith, for appellants.—
    In considering the act of 1907, we submit that it was the purpose of the legislature to bring about uniformity in the pay of witnesses throughout this commonwealth and that this intention is apparent from the title and words of the act itself: Jadwin v. Hurley, 10 Pa. Superior Ct. 104; Com. v. Summerville, 204 Pa. 300; McCleary v. Allegheny County, 163 Pa. 578; Weaver v. Schuylkill County, 17 Pa. Superior Ct. 327.
    The two acts are inconsistent: Poor Directors v. Fayette County, 18 Pa. Dist. Rep. 53; Mohr v. Scherer, 30 Pa. Superior Ct. 509; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; McKeever v. Victor Oil Co., 9 Pa. C. C. Rep. 284; Oakley v. Oakley, 1 Pa. Dist. Rep. 781.

      Chas. S. Duncan, for appellee.
    A general affirmative statute without negative words, either with or without a general • repealing clause, does not repeal prior local laws on the same subject with conflicting provisions. Because the compensation provided is of the same general character only differing in amount from the compensation mentioned in the prior local statute, and there being no such conflict between the two acts, as will work an appeal by implication, it requires something more than a mere difference in amount before a prior local statute relating to the same subject-matter can be considered as repealed, by implication: Morrison v. Fayette County, 127 Pa. 110; Brown v. County Commrs., 21 Pa. 37; Malloy v. Com., 115 Pa. 25; Com. v. Pottsville Water Co., 94 Pa. 516; Com. v. P. & E. R. R. Co., 164 Pa. 252; Com. v. Brown, 25 Pa. Superior Ct. 269; Bell v. Allegheny County, 149 Pa. 381; Hickory Tree Road, 43 Pa. 139.
    There is nothing in the statute of 1907, indicating an intention on the part of the legislature that the act should extend to all of the counties in the commonwealth, as a general system. The language used in the enacting clause is very general, and does not repeal the local acts which fix the compensation for witnesses in the different counties: Smith v. Levy, 26 Lanc. 356; Wright v. Pennell, 26 Lanc. 359; Starr v. Caldwell, 17 Pa. Dist. Rep. 669; Eisenberger v. Eisenberger, 26 Lanc. 367.

      July 20, 1910:
    A general repealing clause is not to be interpreted when standing alone as evidence of any intention to repeal prior local laws, unless there is something else in the act to evidence such intention: Hickory Tree Road, 43 Pa. 139; Poor Directors v. Fayette County, 18 Pa. Dist. Rep. 53; Nissley v. Lancaster County, 215 Pa. 562.
   Opinion by

Rice, P. J.,

By sec. 13 of the fee bill of 1821 (Act of February 22, 1821, 7 Sm. L. 367) witnesses residing in or within one mile of the county seat were allowed fifty cents for each day’s attendance at court, and witnesses residing without those limits were allowed sixty-two and one-half cents. Section 3 of the Act of February 10, 1865, P. L. 133, entitled, “An act to increase the .compensation of the county commissioners, jurors and witnesses, in Adams, Armstrong, Lycoming and Clinton counties,” provided as follows: “That the witnesses, attending the several courts of said counties, shall, each, receive one dollar per day, and the usual mileage, excepting such witnesses who reside within one mile of the county seat, of said court, who shall only receive, for their services, the compensation now allowed by law.” Section 13 of the act of 1821 was amended by the Act of, February 23, 1889, P. L. 8, so as to read: “That the fees to be received by witnesses, shall be as follows, namely: Each day’s attendance at court, one dollar. Each mile circular in traveling to and- from such court, three cents.” The effect was to abolish the distinction between the two classes of witnesses recognized by the act of 1821, except as that distinction was kept in life by local laws. By sec. 1 of the Act of June 1, 1907, P. L. 364, entitled, “An act to increase the pay of jurors and witnesses in this commonwealth,” it was provided that “the pay of witnesses shall be one dollar and fifty cents, per diem, together with mileage as is now provided for by law,” and by sec. 2, all acts or parts of acts inconsistent therewith were repealed.

The question for decision is, whether the act of 1865 relative to fees of witnesses in the county of Adams was repealed by the general act of 1907.

The general rule of interpretation, that a general affirmative statute, without negative words, will not repeal a previous particular one upon the same subject, unless there be something to show a legislative intent to repeal, besides the fact that the provisions of the former are different from those of the latter, has been applied in many cases involving questions of salaries and fees. A leading case is Morrison v. Fayette County, 127 Pa. 110. See, also, Rymer v. Luzerne County, 142 Pa. 108; Bell v. Allegheny County, 149 Pa. 381; Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6, and cases there cited. But that the rule is not to be enforced so as to override the legislative intent is shown by a comparison of Bell v. Allegheny County, 149 Pa. 381, with McCleary v. Allegheny County, 163 Pa. 578, and a consideration of the principles clearly enunciated in Commonwealth v. Brown, 210 Pa. 29. Repeal by implication is wholly a question of legislative intent, and the rule of construction under consideration is but an aid in arriving at that intent. It is founded on good reason, for, as has been repeatedly said, a local law presumably was passed to meet local and exceptional conditions, and a general statute to meet general conditions does not imply that the local conditions have changed or that the legislature intended to change the law which it had previously deemed necessary or appropriate to such conditions. To apply the rule here it must be determined that the act of 1865 is a local law passed to meet local and exceptional conditions; and, so far as the payment of witnesses not residing at the county seat or within one mile thereof is concerned, there is no doubt that it is to be so regarded. In other words, the general law (act of 1821) was changed in that particular for reasons which doubtless seemed wise to the legislature; but it is just as plain that the legislature did not consider that the local and exceptional conditions required any change in the general law so far as it concerned the pay of witnesses residing at the county seat or within one mile thereof. Therefore, such witnesses were expressly excepted from the operation of the local law and their compensation was left to be ascertained by reference to the general law. If the words, “who shall only receive, for their services, the compensation now allowed by law,” had been omitted from sec. 3, it is quite clear that the law regulating the compensation of the excepted class of witnesses would not be a local, but a general law. The question then arises, whether in the construction of the statute these words may be treated as surplusage. Generally, a statute ought to be construed so as to give effect to all of its words, if this may be done without contravening the plain intent of the legislature and no unreasonable or absurd result is reached thereby. At the time of the passage of this statute there was no constitutional provision such as is contained in sec. 6, art. Ill, of our present constitution, relative to the extension of the provisions of an earlier statute by reference only, and the learned judge below treats the clause under consideration as if it had declared in so many words, that the compensation of this class of witnesses should be the same as that provided for the same class of witnesses by the act of 1821. There is much reason and force in this construction of the words. By adopting it we give effect to the general rule above referred to, and reach no absurd or unreasonable result. Upon the whole, we conclude, that it is the correct view to be taken of the statute. This being so, the general principle as to the repeal of local statutes by a general statute, without negative words other than the general repealing clause, is applicable to the case. It is not to be denied that there is much to be said in favor of the appellants’ view; but the conclusion we have reached is more likely, we think, to carry out the legislative intent.

The order is affirmed.


text:
    International Harvester Company, Appellant, v. Tuscarora Township
    (No. 1).

      Townships — Supervisors—Judgment■—Opening judgment — Intervention by taxpayers.

    1. Citizens and taxpayers .of a township have the right under the Act of March 23, 1877, P. L. 20, to intervene and institute an inquiry as to the validity of a judgment confessed by the supervisors against the township.

      Judgment — Striking off judgment — Payment.
    2. Where a judgment note on which judgment, has been entered contains a warrant to enter judgment “if the note is not paid at maturity,” and an indorsement on the note shows payment, and there is no statement or affidavit filed with the note to explain the indorsement, the judgment will be stricken off.

      Townships — Supervisors—Power to borrow money.

    3. Township road supervisors have no general power to borrow money and bind the township for its repayment, nor any implied power to do so, except where its exercise is necessary to enable them to perform their duty.
    4. Where supervisors give notes for a road machine, and when the notes become due borrow money to pay them, and months afterward assign the notes to the lender, without there having been any original intention to assign them, the latter is a mere volunteer and cannot maintain- a suit in the name of the payee of the notes to his own use against the township. In such a case there is no subrogation in favor of the lender inasmuch as he has no standing to maintain an action against the township for money loaned.
    5. While subrogation is founded on principles of equity and benevolence and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another.
    Argued March 15, 1910.
    Appeals, Nos. 20 and 21, March T., 1910, by plaintiff, from order of C. P. Perry Co., Aug. T., 1908, Nos. 58 and 59, making absolute rule to strike off judgments in case of International Harvester Company of America for the use of James G. Brandt v. Tuscarora Township.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Rule to strike off judgment. Before Shull, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule to strike off judgment.

      W. H. Sponsler, for appellant.
    Where money is loaned with the express intention of paying off a good and subsisting debt and an obligation to secure it has been given which has failed, equitable subrogation will be administered for the benefit of one who is about to lose his money: McCormick v. Irwin, 35 Pa. 111; Mosier’s App., 56 Pa. 76; Memphis, etc., R. R. Co. v. Dow, 120 U. S. 287 (7 Sup. Ct. Repr. 482); Valle’s Heirs v. Fleming, 29 Mo. 152; Arlington State Bank v. Paulsen, 57 Neb. 717 (78 N. W. Repr. 303); Life Ins. Co. v. Marshall, 32 N. J. Eq. 103; Detroit, etc., Ins. Co. v. Aspinall, 48 Mich. 238 (12 N. W. Repr. 214); Lockwood v. Bassett, 49 Mich. 546 (14 N. W. Repr. 492); Zinkeisen v. Lewis, 66 Pac. Repr. 644; Public Library v. Tilden, 79 N. Y. Supp. 161; Lashua v. Myhre, 93 N. W. Repr. 811; Motes v. Roberson, 32 So. Repr. 225; Boevink v. Christiaanse, 95 N. W. Repr. 652; Haverford Loan, etc., Assn. v. Fire Assn., 180 Pa. 522; Wells v. Town of Salina, 71 Hun (N. Y.), 559; Irvine v. Kearney County Commrs., 75 Fed. Repr. 765; Coffin v. Kearney County Commrs., 114 Fed. Repr. 518.

      Luke Baker, for appellee.
    That supervisors have no general power to borrow money: Maneval v. Jackson Twp., 141 Pa. 426; Machinery Co. v. Old Lycoming Twp., 25 Pa. Superior Ct. 156; Union Twp. v. Gibboney, 94 Pa. 534; Gibson v. Plumcreek Poor Dist., 122 Pa. 557; Penna. Canal Co. v. Shirley & Union Twps., 18 W. N. C. 397; Millerstown Boro. v. Frederick, 114 Pa. 435; First Nat. Bank v. New Castle, 224 Pa. 285; Heidelberg School Dist. v. Horst, 62 Pa. 301; Rainsburg Boro. v. Fyan, 127 Pa. 74; Gable v. Altoona, 200 Pa. 15; Long v. Lemoyne Boro., 222 Pa. 311.
    July 20, 1910:
    If the use plaintiff had sought to recover the money he loaned to the supervisors by means of an action of assumpsit he would have failed utterly: Machinery Co. v. Old Lycoming Twp., 25 Pa. Superior Ct. 156; Gibson v. Plumcreek Poor Dist., 122 Pa. 557; Union Twp. v. Gibboney, 94 Pa. 534; Millerstown Boro. v. Frederick, 114 Pa. 435; Bank v. New Castle, 224 Pa. 285.
    Subrogation is never decreed in favor of a mere volunteer, who without any duty or obligation, moral or otherwise, pays the debt of another: Cottrell’s App., 23 Pa. 294; Mosier’s App., 56 Pa. 76; Webster & Goldsmith’s App., 86 Pa. 409; Hoover v. Epler, 52 Pa. 522; Williamson’s App., 94 Pa. 231; Campbell v. Foster Home Assn., 163 Pa. 609. Brandt was under no duty or compulsion. Under all the authorities in this state he was a simple volunteer.
   Opinion by

Rice, P. J.,

This and the succeeding case are appeals from orders striking off judgments entered on two promissory notes given by the road supervisors of the defendant township to the legal plaintiff for the price of a gasoline engine for road purposes,' purchased by them on behalf of the township from the plaintiff under the authority conferred by sec. 4 of the Act of April 12, 1905, P. L. 142. The notes were signed by the supervisors and each contained a conditional authorization to enter judgment on the same in the following words: “If the note is not paid at maturity, I hereby authorize any attorney or prothonotary of any court of record in this state, to confess judgment against me for the above sum with costs of suit, and five per cent attorney’s fees, hereby waiving inquisition and all exemptions.” On the date of the notes they were transferred by indorsement to the First National Bank of Millerstown for collection on account of the payee. One of the notes fell due on August 1, and the other on December 1, 1907. In August, 1907, the supervisors, not having funds in their hands sufficient to pay the two notes, borrowed from James G. Brandt the amount and gave him as security therefor a judgment note signed by them. At the time this loan was made the supervisors told Brandt that the purpose for which they wished to borrow the money was to pay the two notes which were then in the bank. With the money thus borrowed the supervisors paid the two notes, which were by the cashier of the bank canceled and marked paid, without request or objection from the supervisors, and delivered to the supervisors, who retained the same until about September, 1908, when they were delivered to Brandt, at his request, by one of their number. Afterwards, “at his'request, the International Harvester Company of America formally assigned the notes to him, and thereupon he caused the judgments in controversy to be entered upon them in the name of the payee to his use. Still later the supervisors, by resolution adopted by a majority of the board, ratified the action of one of their number in delivering the notes to Brandt and acquiesced in the assignment of the notes to him. The rules to show cause why these judgments should not be stricken off were granted upon the application of J. R. Bickler and others, citizens and taxpayers of the township. Their authority to intervene and institute an inquiry into the validity of the judgments is derived from the provisions of the Act of March 23, 1877, P. L. 20.

The Act of February 24, 1806, 4 Sm. L. 270, authorizes the prothonotary to enter judgment on an instrument wherein judgment is confessed or containing a warrant of attorney to confess judgment, against a person or persons who execute the same, “for the amount which from the face of the instrument may appear to be due.” A judgment by confession can be sustained only by a warrant authorizing it at the time and in the manner and form in which it is entered: Eddy v. Smiley, 26 Pa. Superior Ct. 318. Hence, where the warrant was to confess judgment “in any court having jurisdiction, in term time or vacation, at any time after the maturity of this note and before its payment,” and judgment was entered before maturity, it was held that it was irregular and voidable at the instance of the defendant: Osterhout v. Briggs, 37 Pa. Superior Ct. 169. Here the warrant was to enter judgment “if the note is not paid at maturity.” This did not authorize entry of judgment before maturity, and not even after maturity if the note had been paid at the time of entry. As no statement or affidavit was filed with the note contradicting or explaining the indorsement on the face of it showing that it had been paid, the action of the court in striking off the judgment was warranted, prima facie, at least, by the state of the record.

Consideration of the facts which do not appear of record does not lead to a different result.

Township road supervisors have no general power to bprrow money and bind the township for its repayment, nor any implied power to do so, except where its exercise is necessary to enable them to perform their duties: Union Twp. v. Gibboney, 94 Pa. 534; Gibson v. Plumcreek Poor Dist., 122 Pa. 557; Maneval v. Jackson Twp., 141 Pa. 426; Good Roads Machinery Co. to use of Good v. Old Lycoming Twp., 25 Pa. Superior Ct. 156. And the fact that the money borrowed by the supervisors without authority is applied by them to the payment of a debt or the discharge of an obligation of the township does not entitle the lender to maintain an action of assumpsit against the township: Gibson v. Plumcreek Poor Dist., 122 Pa. 557. In the present case the money was not borrowed to enable the supervisors to perform their duties in an emergency, and the claim of Brandt is no more meritorious in any point of view than that which was held in the case last cited to give no cause of action against the district. It follows that although the action of assumpsit is an equitable action it could not have been maintained by him against the township. This is conceded by appellant’s counsel, but it is made the basis of his claim to subrogation. But if the lender of money to supervisors who have no authority to bind the township to its payment cannot maintain an action against the township, even upon proof that the supervisors used it to pay a debt of the township, it is difficult to see how the same result can be reached by an action brought in the name of the creditor, whose debt has been discharged, to the use of the lender. Subrogation is an equity called into existence for the purpose of enabling a party secondarily hable, but who has paid the debt, to reap the benefit of any securities or remedies which the creditor may hold against the primary debtor, and by the use of which the party paying may be made whole: Bispham’s Equity, 7th ed., secs. 27, 335. “It is a legal fiction by force of which an obligation extinguished by payment made by a third party is considered as continuing to subsist for the benefit of this third person, who makes but one and the same person with the creditor in the view of the law:” 2 Bouvier’s Law Diet. (Rawle’s ed.), 1056. It may arise where a payment has been made under a legitimate and fair effort to protect ascertained interests of the party paying and when intervening rights are not legally jeopardized or defeated: Mosier’s Appeal, 56 Pa. 76. But, in general, while subrogation is founded on principles of equity and benevolence and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer who, without any duty, moral or otherwise, pays the debt of another: Campbell v. Foster Home Assn., 163 Pa. 609. An examination of the Pennsylvania cases shows that this is the general rule. The difficult question is, who is to be deemed a volunteer within the meaning of the rule. As liberal a case as any in Pennsylvania that has come to our notice is Haverford L. & B. Assn. v. Fire Assn., 180 Pa. 522. The second paragraph of the syllabus reads as follows: “A person who has lent money to a debtor for the purpose of discharging a debt may be subrogated by the debtor to the creditor’s rights, and if the party who has agreed to advance the money for the purpose employs it himself in paying the debt and discharging the incumbrance on land given for its security, he is not to be regarded as a volunteer. After such an agreement with the debtor he is not a stranger in relation to the debt, but he may in equity be entitled to the benefit of the security which he has satisfied with the expectation of receiving a new mortgage or lien upon the land for the money paid.” In connection with this statement of the point decided we deem it important to call attention to the following remark of Mr. Justice Mitchell, as indicating the reason for holding that the appellant was not a volunteer: “In the present case the appellant was not a volunteer, but paid the first mortgage on the express direction of the debtor, and with the intention of both parties that the appellant should be secured by the land.” The principle would be applicable here to sustain the appellant’s claim, if, at the instance of the supervisors, Brandt had paid the debt of the township with the expectation of standing in the creditor’s place with reference to that debt; in that case it might be said that the payment was in fact a purchase of the debt and was intended to operate as such. But this is not what was done. Brandt did not pay the debt of the township. He had no interest to protect in lending the money to the supervisors. He was under no compulsion, legal, moral or otherwise, to loan the money for this purpose in order to protect some interest of his own. And it is expressly agreed that when the two notes were paid there was no intention or agreement on the part of either the supervisors or Brandt to assign or deliver them to Brandt, and that the possibility of an equitable assignment, or an assignment by operation of law, of said notes to Brandt did not enter the minds of any of the parties at that time, nor for a number of months afterwards. This is not the case of supervisors lawfully contracting a debt for borrowed money, but taking a security therefor which was invalid in law. Under the strict doctrine as to their authority enunciated in the cases heretofore referred to, no debt of the township was created. Presumably the parties knew the law, and knew that no liability of the township to repay this loan was incurred. Brandt was willing to loan the money with this presumed knowledge and to rely on such security for its repayment as the note of the supervisors gave him. It is impossible for us to see how he can be regarded otherwise than as a volunteer, when it comes to the question of the applicability of the doctrine of equitable subrogation. There is reason for taking this view, which applies peculiarly to a case of this kind. To permit subrogation, even with the subsequent acquiescence of the board of supervisors that thus exceeded their powers in making the loan, would be practically to establish a precedent whereby the salutary rule as to the restricted powers of these officers could be easily evaded. See opinion of Brown, J., in First National Bank of Newcastle v. NewCastle, 224 Pa. 285. We will not undertake to review the numerous cases, outside of this state, cited in the able brief of the appellant’s counsel. But we have carefully examined and considered all of the Pennsylvania cases which seem to throw any light upon the question, and conclude that in striking off these judgments and leaving the use plaintiff where he voluntarily placed himself, the court was guided by the principle established in those cases.

The order is affirmed at the costs of the appellant.


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    International Harvester Company, Appellant, v. Tuscarora Township
    July 20, 1910:
    (No. 2).
   Opinion by

Rice, P. J.,

For the reasons given in the immediately preceding case between the same parties, the order is affirmed at the costs of the appellant.


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    Yingst, Appellant, v. Harrisburg.

      Sewers — Contract—Estoppel.
    Where a city pays a landowner a sum of money as a consideration for permission to build a sewer through his land, and the owner examines or has access to the maps, plans and profiles, and stands by while a manhole is being constructed on his premises and makes no objection thereto, and it appears that the manhole was an essential incident to the sewer, such owner cannot years afterwards maintain an action against the city for injuries to his land resulting from the construction and maintenance of the manhole.
    Argued March 16, 1910.
    Appeal, No. 7, March T., 1910, by plaintiff, from judgment of C. P. Dauphin Co.,, June T., 1908, No. 503, for defendant non obstante veredicto in case of John Yingst v. Harrisburg.
    BeforeRice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for the construction and maintenance of a manhole of a sewer on plaintiff’s premises. Before Shull, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court.
    Verdict for plaintiff for $432. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Paul A. Kunkel, for appellant,
    cited: Shaw v. Ry. Co., 79 N. Y. Supp. 915; Stevens v. R. R. Co., 179 N. Y. 601 (72 N. E. Repr. 1151); Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148; Irving v. Media Boro., 10 Pa. Superior Ct. 132.

      Daniel S. Seitz, city solicitor, for appellee.
    Plaintiff was estopped: Pittsburg v. Scott, 1 Pa. 309; Arnold v. Cornman, 50 Pa. 361; Penna. R. R. Co. v. Glenwood, etc., Elec. St. Ry. Co., 184 Pa. 227.

      July 20, 1910:
   Opinion by

Orlady, J.,

The city of Harrisburg enacted an ordinance on January 17, 1902, providing for the construction of a sewer, pursuant to the provisions of sec. 1 of the Act of May 16, 1891, P. L. 75, as amended by the Act of June 12, 1893, P. L. 459.

In May, 1902, this plaintiff and defendant entered into an agreement relating to the construction of this sewer through the premises of the plaintiff, at a depth of seven feet below the surface of the ground, and extending into the Susquehanna river below low-water mark, whereby the defendant in consideration of $150 paid to the plaintiff was to connect therewith all drains and water-closets on the plaintiff’s property in the latest, improved, sanitary and hygienic manner. The ordinances provided that the city engineer should make a survey, map, plan, estimate and specifications for the construction of the sewer, which plan shows a manhole in the sewer at the place where it was subsequently placed on the plaintiff’s premises. The plaintiff was present during the construction of the sewer through his property, saw the manhole constructed, and never made complaint to any of the city officials until about six years afterwards, when this suit was brought. The court below found as a matter of law that the manhole was an essential incident to the sewer, which fact was conceded on the trial, and it follows that the city had the right to designate its location. The maps, plans and profile, which were either examined by or were accessible to the plaintiff must be considered a part of the agreement in the light of the provisions of the ordinance. There was no complaint of defective construction or improper maintenance. On the trial below, as well as on the argument in this court the principal contention was whether the agreement between the plaintiff and defendant authorized the defendant to take a part of the plaintiff’s land for the construction and maintenance of a manhole at the place where it was located. The case was submitted to the jury who returned a verdict of $432 in favor of the plaintiff. On motion for judgment non obstante veredicto, a judgment was entered in favor of the defendant.

The necessity for the manhole as an integral part of the sewer, and that it was part of the construction contemplated by the agreement between the parties, is apparent from the plans and specifications, which provided for its construction and maintenance in accordance with the terms of the common council ordinance, etc. Having received his consideration for that agreement he cannot again recover for the same cause of action. Furthermore, he consented to this plan of construction without objection or protest, and is now estopped from complaining of its operation; Arnold v. Cornman, 50 Pa. 361; Penna. R. R. Co. v. Elec. St. Ry. Co., 185 Pa. 227; Boyd v. Harris, 176 Pa. 484.

The assignment of error is overruled, and the judgment is affirmed.


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    McNeal v. Farmers’ Market Company, Appellant.

      Landlord and tenant — Option to renew lease — Partnership—Unincorporated associations — Parties—Practice, C. P.

    1. Where two partners take a lease with an option of renewal from an unincorporated association, and one partner sells out to the other, and the latter gives notice of renewal to the secretary of the association, who acting within the scope of his powers accepts the notice and agrees to the renewal, the association will not be heard to object that a covenant to renew a lease to more than one lessee cannot be enforced by one of them for himself.
    2. Where a landlord is sued in trespass for an eviction and a failure to perform a covenant to renew a lease, evidence that the tenant who had leased the premises for a skating rink had conducted a disorderly house in violation of the laws of chastity, and of the liquor laws of the commonwealth, is admissible to show that the tenant was not entitled to recover damages for injuries to a business conducted in violation of law; and this is especially the case where the tenant is permitted to show the amount of his business, and his receipts therefrom.

      Practice, C. P. — Parties—Unincorporated associations — Trespass.
    3. An action of trespass may be maintained against the president, secretary and the directors, named as such, of an unincorporated association, where it appears that the defendants sued were responsible for the tortious act of which complaint is made.
    Argued March 16, 1910.
    Appeal, No. 19,- March T., 1910, by defendant, from judgment of C. P. Dauphin Co., June T., 1908, No. 483, on verdict for plaintiff in case of H. B. McNeal v. Farmers’ Market Company, an unincorporated association, Joseph Strickler, President, Joseph N. Lauman, Secretary, Eugene Laverty, John J. Landis, Jacob Epler, Samuel Shank, Directors of said association.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for an alleged wrongful eviction. Before Ktjnkel, P. J.
    The facts are stated in the' opinion of the Superior Court.
    At. the trial the court excluded under objection and exception a large amount of testimony offered for the purpose of showing that the skating rink was run in an improper and immoral way and that liquors were there sold in violation of the liquor laws of the state. [6-12]
    When the plaintiff was on the stand the following offer was made:
    Mr. Wickersham: We propose now to show by the witness on the stand that the latter part of June of 1907, he and Mr. Houck had some difficulties, and it became important and necessary that they should dissolve, that he conferred with Mr. Lauman about it, and Mr. Lauman said, “ Go ahead, buy him out and I will stand by you; ” that thereafter he bought him out and continued to operate the rink himself, paying the rent therefor, which rent was accepted by the Market House Company.
    Mr. Hargest: We object to the offer as made, because the defendant is not concerned with any difficulties between these partners.

      Mr. Wickersham: It is offered for the purpose of showing that after July 9, 1907, H. B. McNeal became sole owner of the Excelsior Rink Company and succeeded to the rights of the parties on this lease, and was so recognized by the defendant.
    Mr. Hargest: That is objected to as irrelevant, immaterial and incompetent, unless it be shown that Lauman had authority to speak for the defendant.
    It is further objected to, that even if true, it gives no right to this plaintiff to insist upon a privilege after the expiration of the first term.
    The Court: We will receive the offer, and we will determine its effects afterwards. Exception to the defendant. [4]
    Mr. Wickersham: If the court please, we propose to show that he told Mr. Lauman that he intended to avail himself of the privilege of retaining the premises for two years in addition to the one that he had, and Mr. Lauman said that was satisfactory, but asked him to waive the right to use the market house on Friday evening, because it gave some trouble to the market people the next morning. He said he would agree to continue for the balance of 'the two years, using the market house all of the time mentioned in the original lease except Friday evening, and in consideration of his agreeing to that, Mr. Lauman agreed that the rent should be $62.50 instead of $75.00 a month; that this agreement having been reached, Mr. McNeal dictated to his stenographer an agreement to renew the lease for two years, which was read over to Mr. Lauman, and which he said was all right; this for the purpose of showing that Mr. McNeal notified the defendant that he intended to avail himself of the additional two years’ privilege mentioned in the original lease.
    The Court: What time?
    Mr. Wickersham: Some time in January, 1908. The date is not on the paper.
    Mr. Hargest: That is objected to as incompetent and irrelevant, because it is not offered to be shown that Lauman had any power or authority from the market company to grant any term whatever, and that the offer is not an offer to show the exercise of a privilege under the terms of this lease; and further, no offer to show any waiver of the fact that Lauman had no such authority by any subsequent conduct; and further that the offer was made by a different lessee and not by the person to whom the original lease was given.
    The Court: We overrule the objection and receive the offer. Exception to the defendant. [5]
    The court charged in part as follows:
    [The defendant, the market company, is not a corporation. It is an unincorporated association. As we understand, it is composed of certain persons who united themselves for the purpose of transacting and running a market house, transacting a certain business with respect to a market house. As far as we are advised, there is no limitation upon their liability. They are a body of persons unincorporated, associated together, for the transaction of certain business. Lauman is their secretary; Lauman is one of the company; one of the unincorporated body, and we must say to you that it is a general principle of law, when persons act together in the transaction of business, that each one is the agent of the other within the scope of the business mutually being transacted. In other words, if persons act together and become partners, the one partner is the agent of the other partner or of the other members of the partnership within the scope of the business of the partnership. He is able to bind the partnership or the other members of the firm by his acts, if the acts be within the scope of the partnership business, and we are bound to say that to you, because here you have the defendants who are not an incorporated body. Substantially they are partners, and the act of one within the scope of the business in which they are mutually engaged, binds the rest, whether he had previous authority or not, whether he has had express authority or not. The one partner is the agent of the other in the transaction of the partnership business, and as long as the matters he does are within the scope of the business of the partnership, he binds the other members of the partnership without any previous authority and without any express authority, so far as regards his dealings with any third person.] [1]
    [But in order that the firm should not be bound by the act of the partner acting without authority, without express authority, it must be shown that the person with whom he acted knew that he had not such authority. The law is, as we said before, that one partner is the agent of the partnership, of the other partners, and if he acts within the scope of the partnership business and what he does is a partnership transaction, it binds the other members of the partnership.] [2]
    Verdict and judgment for plaintiff for $1,250. Defendant appealed.

      Errors assigned among others were (1, 2) above instructions, quoting them; (4-12) rulings on evidence, quoting the bill of exceptions.

      W. M. Hargest, of Hargest & Hargest, for appellant.—
    The action at law did not lie against the association: Fairweather v. Rorke, 18 Pa. Dist. Rep. 1003; Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393; Maisch v. Order of Americus, 223 Pa. 199; McDonnell v. Jones, 24 Pa. C. C. Rep. 40.
    The defendant contends that the vile, unlawful and immoral use to which the plaintiff subjected the defendant’s premises could be shown: Long v. Fitzimmons, 1 W. & S. 530.
    The provision in the lease which in terms is “with the privilege of three years” is a part of the contract made not between the market company and McNeal, but between the market company and Houck and McNeal. The lessees were joint lessees, they were partners. Neither of them could claim the exercise of the option for himself alone nor could any such claim be enforced against the lessor, the market company: Howell v. Behler, 41 W. Va. 610 (24 S. E. Repr. 646); Finch v. Underwood, L. R. 2 Ch. Div. 310.
    July 20, 1910:

      Edward E. Beidleman, with him Frank B. Wickersham, for appellee.
   Opinion by

Rice, P. J.,

The written lease of the premises from which the plaintiff claimed in this action of trespass that he was unlawfully evicted was executed by the Farmers’ Market Company, an unincorporated association, by Joseph Lauman, its secretary, as lessor, and H. B. McNeal and H. S. Houck, as lessees. The term was one year from March 1, 1907, with privilege of three. It appears that McNeal and Houck were partners in a skating rink business conducted on the premises, and that in July, 1907, McNeal bought out Houck and thereafter had exclusive possession of the premises and conducted the business and paid the rent individually. At midnight on February 29, 1907, the term of one year ending at that time, the lessors evicted McNeal, and later he brought this action.

The lease, as we have seen, was for one year with privilege of three. This gave the lessees an option, and, assuming that it was exercisable by McNeal alone, there was ample evidence that he exercised it in due season by express notice to Lauman, the secretary and treasurer of the association, who, moreover, had acted for the association in making the lease, in collecting the rent, and in other negotiations regarding the use of the premises. We deem it unnecessary to recite the conflicting evidence bearing upon the question of the exercise of the option; it is enough to say that the court -submitted the question to the jury and that the evidence was sufficient, if believed by them, to sustain a finding that the option was exercised.

But the appellant’s counsel argue that a covenant to renew a lease to more than one lessee cannot be enforced by one of them for himself. On the other hand, it is contended, and evidence was given to show, that before buying out Houck, McNeal consulted Lauman, the secretary and treasurer of the association, who told him to go ahead and that he would stand by him, and that, acting on this inducement, McNeal bought out Houck and thereafter held exclusive possession of the premises, paying the rent, with the acquiescence of the lessors. There was evidence also tending to show that when McNeal gave notice of his intention to hold the premises for the three years this was not only assented to by Lauman acting for the association, if not by other officers of the association, but that a change in some of the terms of the lease were then agreed to.. Applying the well-understood principle as to the authority of a partner to act for the partnership in matters within the general scope of the business, the court held that the question whether Lauman had authority to substitute the plaintiff for the original tenants named in the lease was for the jury under the evidence. In this we see no error. There was ample evidence to sustain a finding that the transactions were within the scope of the business of the partnership, for that is what the association was, and that Lauman in his dealings with the plaintiff was acting within the scope of his authority as secretary and treasurer of the association and that his acts were acquiesced in. It was perhaps too broad a statement of the question to say, as was said at .the conclusion of the instructions complained of in the third assignment of error, that “the question comes down practically to this, whether Lauman, the agent of these defendants, accepted McNeal as a substitute for or in place of the tenants originally named in this lease,” and to that extent this assignment of error is sustained; but that the-general question, as above stated, was for the jury we concur with the learned trial judge.

It is further contended, upon the authority of Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393, and Maisch v. Order of Americus, 223 Pa. 199, that an action at law could not be maintained and therefore the request for binding instructions should have been granted. The point decided in those cases was that, as the statutory law of Pennsylvania now stands, an unincorporated beneficial association may not be sued in assumpsit in its collective capacity or name for an obligation of the organization. We think those decisions are not applicable to the present case. This was an action of trespass. The names of the defendants as they stood on the record of the court below were, “Farmers Market Company, ah unincorporated association, Joseph Strickler, president, Joseph N. Laurean, secretary, Eugene Laverty, John J. Landis, Jacob Epler, Samuel Shank, directors of said association.” Service of the summons was accepted for all of the defendants, and a general appearance and plea of “not guilty” were entered for them. In the cases cited it was held that the proper method of suing such association is to institute a suit in equity against some of the members as representing themselves and all others having an interest, and, after judgment, to compel the defendants to see that the treasury of the association pays the claim. This remedy would be wholly inappropriate to recover damages for a tort committed by members of an unincorporated association organized for profit. There was evidence that the defendants sued were responsible for the tortious act complained of, and, .if this were the only question in the case, the judgment entered against them ought not to be disturbed.

The evidence offered in the sixth, seventh, ninth, tenth, eleventh and twelfth assignments taken collectively would tend to show that notwithstanding the lessees’ covenant “that they will use and occupy the said premises as á roller skating rink and for no other different object or purpose,” the plaintiff conducted a disorderly house in violation of the laws of chastity and the liquor laws of the commonwealth. Whether or not the evidence would have come up to the offers and would have justified a forfeiture of the lease and a refusal to permit a renewal of the lease at the end of the year, are questions the decision of which may well be postponed until the facts are fully developed and established. But the evidence was offered not merely to show a right of forfeiture, but for the purpose of showing that the plaintiff was not entitled to recover damages for injuries to a business conducted in violation of law, and for that purpose we think the evidence was competent, particularly in view of the manner in which the plaintiff presented his case upon the question of damages. While the plaintiff was. not permitted to recover his profits as such, yet he was permitted to show the amount of business he did and his receipts therefrom, and the jury were instructed that they might consider in determining the value of his leasehold the business that was done, the nature, amount, and profits, as throwing some light on the value of the leasehold or the value of his term. But if he conducted an illegal and immoral business the receipts or the profits would be no test of the value of the term. For the same purpose and reason that the evidence hdduced by the plaintiff was admitted, that offered by the defendant ought also to have been admitted.

We will not discuss the assignments of error further in detail. We have sufficiently indicated the grounds upon which our conclusion that the cause must be sent back for a retrial rests.

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


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    Bortner’s Estate.

      WiUs — Construction—Life estate — Bond—Heir at law — Disinheriting heir — Acts of May 17,1871, P. L. 169, February 24,1884, P• L- 70, and April 17,1869, P. L. 70.

    1. An heir can only be disinherited by express devise or necessary implication, and that implication is such a strong probability that an intention to the contrary cannot be supposed.
    2. Where a testator gives a portion of his estate to a daughter on condition that the daughter shall “enter into a bond” conditioned that if she shall die without issue her share shall be distributed among testator’s children or legal representatives, the daughter’s refusal to execute a bond with surety when she offers to execute her individual bond, is no ground for excluding her from her bequest under the will.
    Argued March 16, 1910.
    Appeal, No. 11, March T., 1910, by Mary Myers, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of David Bortner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed. •
    Exceptions to report of Charles H. Hawkins, Esq., auditor.
    The facts appear by the opinion of the Superior Court.
    The court in an opinion by Bittenger, P. J., dismissed exceptions to auditor’s report.

      Error assigned was decree of the court.

      Charles G. Glessner, for appellant,
    cited: Pratt v. Langston Mercantile Co., 111 Mo. App. 96; Locke v. Locke, 45 N. J. Eq. 97 (16 Atl. Repr. 49); Rupp v. Eberly, 79 Pa. 141; Bender v. Dietrick, 7 W. & S. 284; White’s Est., 1 W. N. C. 114; Green’s App., 42 Pa. 25.

      E. B. Ziegler, of Ziegler & Son, for appellees,
    cited: Duval’s App., 38 Pa. 112.

      July 20, 1910:
   Opinion by

Rice, P. J.,

This is an appeal by Mary Myers, a daughter and legatee under the will of David Bortner, deceased, from the decree of the orphans’ court in the distribution of a dower fund charged on land and paid into court pursuant to the provisions of the Act of May 17, 1866, P. L. 1096, as amended by the Act of March 22, 1907, P. L. 29. The principal question in the appeal arises out of the following bequest: “I give and bequeath to my daughter Mary Myers, one-sixth of my entire estate after my just debts, funeral expenses and bequests to my beloved wife are fully paid. This bequest is however made only on condition that the said Mary Myers shall enter a bond with my executors in double the amoúnt of her share, conditioned that if she shall die without issue that the said amount of her bequest shall be equally divided between the remaining of my beloved children or to their legal representatives, that the said Mary Myers shall only be entitled to such a sum for her own use as shall be derived from the investment of the said bequest, and should she fail to comply with the conditions herein mentioned and if she shall not be satisfied with the conditions of this will, I direct that not one penny from my estate shall be paid to her.” At the hearing before the auditor the attorney of Mary Myers claimed her share under the will, if the auditor should find that the fund'was to be distributed under the will, but, if not distributed under the will, but under the charge in the deed, then as an heir or child of David Bortner, stating that “if distribution is made under the will his client is ready and willing to comply with the terms and conditions of the will, to wit, to give her bond without security, conditioned as set forth in the will, as to the disposition of her share of the estate.” The learned auditor, whose report was approved by the orphans’ court, held that she was not entitled to participate in the distribution and awarded the fund, less expenses of audit, in five shares to Mary Bortner’s living brothers and sisters and to the personal representatives of one Albert H. Bortner, deceased. This conclusion was reached by construing the provision as to her giving a bond to mean that her right to the share bequeathed to her was conditioned upon her giving bond with surety. It is suggested that the requirements of the Act of May 17, 1871, P. L. 269, of the Act of February 24, 1834, sec. 49, P. L. 70, and the Act of April 17, 1869, P. L. 70, could be enforced irrespective of the provision of the will. Assuming this to be so, it is to be observed that the decree forfeiting her share of her father’s estate and distributing it amongst others is not based upon these acts, but is based exclusively upon a construction of the will. The question as thus presented is a very narrow one and does not permit extended discussion. It is said, Can it be assumed that in requiring a bond in the will the testator, who was so insistent as to results, meant less than the law would require? Is it not an equally pertinent suggestion that he did not make the condition more stringent and exacting because of his knowledge of the power of the court, if the special circumstances required it, to enforce the provisions of those acts? The question is not whether she may be required to give such security as those acts contemplate before the money awarded her shall be paid into her hands, but whether she absolutely forfeited her share by her failure to give to the executors a bond with surety. Technically, a bond is a deed or obligatory instrument in writing whereby one doth bind himself to another to pay a sum of monej'- or to do some other act; but in popular language, any instrument in writing that legally binds a party to do a certain thing may be called a bond: 5 Cyc. of Pr. and Prac. 729. No definition of a bond, that has been brought to our notice, makes it essential that it be entered into by any other person than the person who is required to give it. It is only by surmise and vague and uncertain conjecture that the result can be arrived at that the testator used the word “bond” in any other than its ordinary sense. If he had intended that she must give a bond with surety, it would have been very easy, and the natural thing to do, for him to say so in plain terms. As was said in Locke v. Locke, 45 N. J. Eq. 97: “When a testator uses plain everyday English to express his meaning, there cannot be any risk of doing violence to his understanding of it by taking him at his word.” It is a maxim, that an heir can only be disinherited by express devise or necessary implication; and that implication has been defined to be such a strong probability, that an intention to the contrary cannot be supposed: Bender v. Dietrick, 7 W. & S. 284. This principle, which has been recognized in numerous cases, should be kept in view in the construction of the provision in question and furnishes a potent reason for not straining the words beyond their natural and ordinary meaning. We are therefore compelled to dissent from the conclusion reached by the learned auditor and the learned judge of the orphans’ court.

The decree is reversed and the record is remitted to the orphans’ court for further proceeding in accordance with the foregoing opinion. The costs of the appeal to be paid by the appellees.


text:
    Emig v. Northern Central Railway Company, Appellant.

      Railroads — Negligence—Sparks—Evidence—Case for jury.

    1. In an action against a railroad company to recover damages for the destruction of a building by fire alleged to have been started by sparks, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the building stood within four feet of the defendants’ track; that the fire was not started from the inside of the building; that after a particular engine had passed, smoke and fire were observed among the shingles; that although this engine was properly equipped with a spark arrester, it gave out sparks of an unusual size which were thrown to a considerable distance and at the time the fire was first observed the wheels of the engine slipped and swung around; and that the same engine had at other times not long past thrown out volumes of sparks and hot cinders.
    2. Fire from sparks may be shown by circumstantial evidence, and it is not imperatively necessary for the owner of the building burned to produce a witness who actually saw the inception of the fire.
    Argued March 17, 1910.
    Appeal, No. 22, March T., 1910, by defendant, from judgment of C. P. York Co., Aug. T., 1908, No. 72, on verdict for plaintiff in case of Mary J. Emig and Belle L. Emig for the use of the Spring Garden Mutual Fire Insurance Company v. The Northern Central Railway Company.'
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for destruction of a building by fire. Before Warner, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,318.81. Defendant appealed.

      Error assigned was various rulings on evidence and instructions.

      Richard E. Cochran, with him Smyser Williams, for appellant.
    The mere fact that the fire was caused by sparks which were thrown from a locomotive was not evidence of negligence, nor any ground for an inference or presumption to a jury that the burning was caused by negligence on the part of the railroad company, or any of its servants. This principle was decided in a long line of cases in Pennsylvania, among which are: Albert v. Ry. Co., 98 Pa. 316; Henderson v. R. R. Co., 144 Pa. 461; R. R. Co. v. Schultz, 93 Pa. 341; Ry. Co. v. Decker, 78 Pa. 293; R. R. Co. v. Yerger, 73 Pa. 121; Keiser v. R. R. Co., 212 Pa. 409; Winterbottom v. R. R. Co., 217 Pa. 574; Ott v. Boggs, 219 Pa. 614.

      Allen C. Wiest, with him J. W. Gilt, Jr., for appellee.—
    The case was for the jury: Henderson v. R. R. Co., 144 Pa. 461; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Philadelphia, etc., R. R. Co. v. Shultz, 93 Pa. 341; Van Steuben v. Central R. R. Co., 178 Pa. 367; Hancock Ice Co. v. R. R. Co., 224 Pa. 74; McCully v. Clarke, 40 Pa. 399; McMahen v. White, 30 Pa. Superior Ct. 169; Huyett v. R. R. Co., 23 Pa. 373; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10; Frankfort, etc., Turnpike Co. v. R. R. Co., 54 Pa. 345; Byers v. B. & O. R. R. Co., 222 Pa. 547.

      July 20, 1910:
   Opinion by

Orlady, J.,

The legal plaintiffs owned a frame store building which was located within four feet of a siding of the defendant’s railroad, and which, with its contents, was totally destroyed by a fire, alleged to have been started by the careless and negligent operation and management of an engine on the railroad siding. The use plaintiff paid the owners of the building the sum of $1,200, which it conceded to be due in satisfaction of a policy of insurance issued by it to the owners of the property. It was held by them at the time of the fire, and the use plaintiff was then subrogated to their rights as against any party who caused the destruction of the property by the fire. This action was then instituted, and on the trial below a verdict of $1,318.81 was recovered by the use plaintiff.

A series of facts were developed on the trial from which the inference of negligence on the part of the defendant arose, and which were of sufficient weight to carry the case to the jury. Having once arisen, the inference remained until overcome by countervailing proof; whether so overcome was a question of fact which the court could not determine: Devlin v. Beacon Light Company, 198 Pa. 583; Whaley v. Citizens’ National Bank, 28 Pa. Superior Ct. 531. There was but one fact in serious dispute on the trial, to wit, the manner in which the defendant’s engineer operated the engine. It was testified positively by the plaintiff’s witnesses, and not contradicted in any way that the fire did not start on the inside of the building, there having been no stove in it or fire of any kind to communicate to the roof; that there were no electric wires at the place where the fire was first located; that within a few minutes after engine No. 4,005 passed the property, smoke and fire were observed among the shingles on the roof of the building, and that the fire which started at that point, continued until the whole structure was consumed. While it was conceded in the ■ plaintiff’s proof that this engine was properly equipped with a spark arrester of the latest design and most approved pattern, and such a one as was generally in nse on the larger railroads of the country, and further that it was not possible to place upon an engine a spark arrester which would entirely prevent the emission of sparks from its smokestack, for the reason that such an appliance would destroy the efficiency of the engine; yet, it was urged, and supported by. proof of a degree that satisfied the jury of its being reasonable and true, and sufficient to establish the fact that this engine at the time the fire was started was operated in such a negligent manner as to cause this fire, despite the safeguards' which had been provided by the railroad company. It was clearly shown that live or hot sparks in considerable quantities and of large size were thrown from the smokestack, some of them being described as being as thick as- a man’s finger or thumb, or a half inch square; and which were forced at times twenty feet above the smokestack as the engine passed; that at the time the fire was first observed the wheels of the engine slipped and spun round, and it was contended that these conditions were caused by the engineer misusing and negligently operating the engine. Whether a spark or piece of hot, coked coal of the size described by these witnesses could be forced through a spark arrester or screen with a thr.ee-sixteenths inch mesh was a fact to be considered and disposed of by the jury. Such a result was manifestly impossible unless the semifused coal, under the influence of a great draft was forced through the interstices of the mesh, and then suddenly expanded when exposed to the lower temperature of the outside air. This explanation as urged was doubtless adopted by the jury under their common experience and knowledge as men in dealing with the laws of nature. It was further shown that this particular engine had been so managed by the engineer that on other occasions, reasonably approximate in time to this fire, it had thrown out volumes of sparks and hot cinders. The condition of the track, the necessity for the exceptional and forced draft, the length and weight of the train, the grade to be overcome, the proximity of buildings were all to be considered by the jury, and its duty in giving proper weight to this evidence was carefully explained in a clear and adequate charge.

It is true that no witness saw the inception of this fire, but as stated in Stephenson v. Railroad Company, 20 Pa. Superior Ct. 157: “It is impracticable in most cases to establish such a fact by the direct testimony of eyewitnesses. The law does not absolutely require that kind of proof, nor even proof of facts which precludes possibility of doubt as to the fact in question. The Pennsylvania reports show that numerous recoveries have been sustained where the fact that the fire was caused by sparks and cinders emitted from the company’s engines was based wholly upon circumstantial evidence, not a whit more conclusive than that presented by the plaintiff in this case.” Moreover, by the testimony in this case all other reasonable causes for the fire were eliminated, and the testimony which fixed this engine as its proximate cause was fortified by proof that when under the same management at other places, closely related in time, it produced exactly similar conditions to those alleged to have been the cause of this fire. When the plaintiff can show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of the defendant’s negligence, it is sufficient to put the case to the jury for the purpose of showing negligence; and it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is then a conflict that necessarily sends the case to the jury: Badman v. Penna. R. R. Co., 42 Pa. Superior Ct. 531; and Derminer v. New York Central &c. R. R. Co., 42 Pa. Superior Ct. 538. Brillinger v. N. C. R. R. Co., 229 Pa. 182, filed July 1, 1910.

The judgment is affirmed.


author: Morrison, J.,

text:
    Reeder v. Harborcreek Mutual Fire Insurance Company, Appellant.

      Insurance — Live stock insurance — Sheep—Death by lightning — Evidence — Circumstantial evidence — Question for jury.

    In an action against an insurance company to recover the value of sheep found dead after a night in which a violent thunderstorm prevailed, where there is circumstantial evidence that the sheep were killed by lightning, the case must be submitted to the jury.
    Argued April 11, 1910.
    Appeal, No. 59, April T., 1910, by defendant, from judgment of C. P. Erie Co., Feb. T., 1908, No. 67, on verdict for plaintiff in case of I. R. Reeder v. Harborcreek Mutual Fire Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of live stock insurance. Before Walling, P. J.
    At the trial it appeared that the policy of insurance contained a clause insuring live stock against direct loss by hghtning. On the morning of May 4, 1907, the plaintiff discovered thirty-eight sheep and four lambs lying dead on his farm. During the night a severe thunder and lightning storm occurred. There were no marks on the sheep to indicate what caused the death of the sheep, but the work of Camille Flammarion on thunder and lightning was admitted in evidence, and from this it appeared that men and animals may die from a stroke of lightning without having on them any visible marks. The eyes of the sheep were opened. There was evidence that sheep dying from natural causes die with their eyes shut, and that when they die from a stroke of lightning their eyes remain open. It appeared that one of the sheep was partly paralyzed and blinded, and that he afterwards recovered.
    The court refused binding instructions for defendant.

      July 20, 1910:
    Verdict and judgment for plaintiff for $323.40. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      U. P. Rossiter, of Thompson, Rossiter & Thompson, for appellant.
    The evidence was not sufficient to support the verdict: Fredericks v. R. R. Co., 225 Pa. 23; Hyatt v. Johnston, 91 Pa. 196.

      J. Orin Wait, for appellee,
    cited: Blakeslee v. Scott, 37 Legal Int. 474; Com. v. Harman, 4 Pa. 269; Warren v. Ulrich, 130 Pa. 413; Cromley v. Penna. R. R. Co., 211 Pa. 429.
   Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff recovered a verdict and judgment thereon for $323.40 for the loss of sheep and lambs killed, as he alleged, by lightning. There is no dispute as to the sudden death of the sheep and lambs on the night of May 3, or morning of May 4, 1907. And that on that night there was a severe rainstorm with heavy lightning and thunder. Nor is it disputed that the defendant company had insured the defendant’s sheep and the policy was then in full force. The testimony as to what caused the death of the sheep and lambs is circumstantial, and we think it raised a question for the jury and that it is sufficient to sustain the verdict. We do not agree with the counsel for the appellant that the verdict was based upon guesses, surmises, conjectures or possibilities. Nor do we agree with him that there was no evidence to support the plaintiff’s claim. On the contrary, we think there was enough evidence to warrant the jury in finding that the animals were killed by lightning. It is quite true that the jury might have refused to so find on the circumstantial evidence, but it is the misfortune of the defendant that his very able counsel did not succeed in pursuading the jury to find in favor of the defendant. We have carefully examined the evidence and the charge and rulings of the trial judge and in our opinion the case was tried and submitted to the jury with marked fairness. The sole ground on which we are asked to reverse the judgment is the insufficiency of the evidence, and as we do not agree with this contention it follows that the specifications of error must be overruled.

The judgment is affirmed.


author: Oblady, J.,

text:
    Atlantic Refining Company, Appellant, v. Fisher.

      Contract — Sale—Postponement of payment — Estoppel.
    Where a dealer purchases goods under an agreement that he is not to pay for them until he has used them, and thereafter when urged to pay for the goods asks for a further extension, and promises to pay after a certain period, he cannot after the expiration of such period, allege that he was not to pay for the good's until he had actually used them; his promise to pay on the specified date estops him from setting up the original contract.
    Argued March 2, 1910.
    Appeal, No. 10, Jan. T., 1910, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 1908, No. 366, on verdict for defendant in case of Atlantic Refining Company v. C. K. Fisher.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Ormerod, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for defendant.

      Errors assigned were in refusing binding instructions for plaintiff and in refusing judgment for plaintiff non obstante veredicto.

      M. C. Rhone, with him A. R. Jackson, for appellant,

      July 20, 1910:
    cited: Hill v. Epley, 31 Pa. 331; Standard Interlock Elevator Co. v. Wilson, 218 Pa. 280.

      N. M. Edwards, for appellee, filed no printed brief.
   Opinion by

Oblady, J.,

■ On June 11, 1907, the plaintiff shipped two barrels of paint to the defendant, which were' received and the freight charges thereon paid by the defendant within a few days. In December of that year payment for the paint was demanded and a draft made on the defendant, which was not paid. A few days later in reply to a letter from the plaintiff, the defendant wrote as follows: “Your letter is before me. I was not at home when the draft came to hand, and I must now ask you to kindly prolong the time until Spring. When I gave this order, I told him I had a lot of paint on hand and I really didn’t need any this whole summer, .and he wanted to be sure and keep me supplied and if I could not use it this summer, he would have the time extended. I still have some old on hand and have not touched any of yours yet. I told him if his paint was all right I would continue to use it, so I ask you kindly to extend this time until Spring as I have no use for it this winter. Let me hear from you and hoping my request will be granted.”

The sole defense offered on the trial was that at the time the alleged order was given for the paint, the defendant was promised by the agent, that “he did not need to pay for it until he used it,” and whether this promise was in fact made by the plaintiff’s agent was the question submitted to the jury; the court saying: “If as a matter of fact at the time this paint was sold it was understood between the agent and the defendant that he was not to pay for it until he used it, or until he began to use it, if that was the understanding between them, then this case is prematurely brought.” And the court refused the following points: “Second. If the jury believe from the evidence that the defendant has retained possession of the paint for over two years, then he has ratified the sale, the verdict must be for the plaintiff. Third. Under all the evidence in the case, the verdict must be for the plaintiff.”

The defendant was called as if on cross-examination. He admitted the giving of the order and receiving the paint on June 11, 1907, and that he had it in his possession at the time of the trial, “that it was laying in the alley, soaking in the sand.” There was no examination made of the paint, and defendant made no complaint as to its quality.

Conceding the defendant’s contention to be correct, he has closed his mouth on that subject by his letter above quoted of December 24, in which he changed the time of payment from an indefinite, uncertain date in the future, to a reasonably definite one in the following spring. The request to “extend the time until spring,” and “kindly prolong the time until spring,” made definite as to the time of payment which beforehand had been uncertain was before uncertain. The plaintiff acted upon this request and made no further demand until the following August. The principle is well settled that where no time is fixed for the performance of a contract, the law will fix a reasonable time: Standard Interlock Elevator Co. v. Wilson, 218 Pa. 280.

The defendant then, after fixing the time to which he desired the payment extended, was bound to do one of two things, either pay or rescind, so that the plaintiff could have an opportunity of having the goods returned or of reselling them. Instead of this, the defendant retained possession of the goods and allowed them to deteriorate for want of proper protection. The reason for the rule which requires that á rescission be prompt, and that it be evidenced in some unequivocal maimer is that parties may not be led into a course of action founded upon a belief that the contract has been affirmed: Mann v. Salsberg, 17 Pa. Superior Ct. 280.

Under' the undisputed facts in the case, it was the duty of the court to declare that however indefinite the time of payment originally was, the defendant had ratified and confirmed his purchase and made the time of payment definite and certain within a reasonable time; and that he is now estopped from making any contention in regard to further postponing the time when he was to pay for the paint until he had used it.

Where there is no dispute about the facts, it is a question of law, whether or not the facts proven constitute an estoppel, and should be determined by the court: Keating v. Orne, 77 Pa. 89; Coxe v. Rogers, 77 Pa. 160; Union Trust Co. v. Cain, 29 Pa. Superior Ct. 189. The extension given to the defendant was a reasonable one and the court should have so held and directed a verdict in favor of the plaintiff.

The first and second assignments of error are sustained. The judgment is reversed, and judgment is now entered non obstante veredicto in favor of the plaintiff.