author: Rice, P. J.,

text:
    Blakiston, Appellant, v. Davies, Turner & Company.

      Sale — Delivery—Intention—Carriers—Case for jury — Forwarders— Pleading — Allegata and probata.

    1. If it apjrears from a contract of sale that delivery is to take place at a distant place and that the title is to remain in the consignor until that place is reached, delivery to the carrier does not divest title of the vendor in the property, nor pass it to the purchaser until it reaches its destination, and the hazards of transportation are at the risk of the consignor. If in such a case the facts as to where the property is to be delivered are not in dispute, the question as to when the title passes is for the court, but if the evidence is conflicting or if a different inference may be drawn from the undisputed facts, the question is one for the jury. If the title does not pass until delivery at the destination, and the goods are lost in transport, the consignor may sue the carrier in his own name.
    2. Where a statement of claim alleges that the defendant is a common carrier, the defendant cannot relieve himself from liability, if it is in fact a common carrier, by inserting in its bill of lading a clause to the effect that it shall be held liable only as a forwarder.
    3. To constitute a common carrier it is not essential that the person or corporation undertaking such service own the means of transportation.
    4. Where a company claiming to be a forwarding company onty accepts goods to be delivered in a distant country and has the goods hauled by its hired truckman to a railroad, and the goods are to be delivered to the company’s delivery agents in the place of destination to be delivered finally to the consignee, and the goods are-not delivered according to the contract, there is sufficient evidence to show that the company was in fact a common carrier, and if it is so described in the statement of claim there is no fatal variance between the allegata and probata.
    Argued Oct. 7, 1909.
    Appeal, No. 56, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 393, on verdict for defendant in case of Kenneth M. Blakiston, trading as P. Blakiston’s Son & Co. v. Davies, Turner & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    ' Appeal from judgment of magistrate. Before McMichael, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      C. W. Conard, of Conard & Middleton, for appellant.
    — If the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risk of the carriage, the carrier is the agent of the vendor: Hutchinson on Carriers, secs. 1306, 1320; Hand v. Baynes, 4 Whart. 204; Ry. Co. v. Guano, 103 Ga. 590 (30 S. E. Repr. 555); Grogan v. Adams Express Co., 114 Pa. 523; Griffith v. Ingledew, 6 S. & R. 429; Dannemiller v. Kirkpatrick, 201 Pa. 218.
    There was no variance: Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Crotzer v. Russel, 9 S. & R. 78; Geddis v. Irvine, 5 Pa. 508.
    The plaintiff contends that the defendant is a common carrier within the meaning of the law fixing its liability as to shipments of goods: Beckman v. Shouse, 5 Rawle, 179; Lumber Co. v. Peoples Coal Co., 26 Pa. Superior Ct. 575; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; American Express Co. v. Sands, 55 Pa. 140; Grogan v. Adams Express Co., 114 Pa. 523; Gulliver v. Adams Express Co., 38 Ill. 504; Mather v. American Exp. Co., 138 Mass. 55; U. S. v. Pacific Exp. Co., 15 Fed. Repr. 867; Christenson v. American Exp. Co., 15 Minn. 270; Read v. Spaulding, 5 Bosworth, 395; Southern Exp. Co. v. McVeigh, 20 Gratt, 264; Buckland v. Adams Exp. Co., 97 Mass. 124; New Jersey Steam Nav. Co. v. Merchants’ Bank, 47 U. S. 344; Bank of Ky. v. Adams Exp., 93 U. S. 174.
    But, even as a “forwarder” the question should have been submitted to the jury in this case, whether or not there was negligence on the part of the defendant: Hoeveller v. Myers, 158 Pa. 461; Woodruff v. Painter, 150 Pa. 91; Shenk v. Propeller Co., 60 Pa. 109; Verner v. Sweitzer, 32 Pa. 208; Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297; Lamb v. Irwin, 69 Pa. 436; Grambs v. Lynch, 20 W. N. C. 376.

      C. Bradford Fraley, with him Henry N. Paul, Jr., for appellees.
    — Defendant is not a common carrier and is not liable as such: Cownie Glove Co. v. Merchants’ Dispatch Transp. Co., 106 Northwestern Repr. 749; American Express Co. v. Second Nat. Bank, 69 Pa. 394; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Davenport v. R. R. Co., 10 Pa. Superior Ct. 47; Farnham v. R. R. Co., 55 Pa. 53; Patterson v. Clyde, 67 Pa. 500.
    The right of action was in the consignee alone: Morberger v. Hackenberg, 13 S. & R. 26; Dannemiller v. Kirkpatrick, 201 Pa. 218; Frank Bros. & Co. v. R. R. Co., 9 Pa. Superior Ct. 129; P. & R. R. R. Co. v. Wireman, 88 Pa. 264; Bacharach v. Chester Freight Line, 133 Pa. 414.
    April 18, 1910:
   Opinion by

Rice, P. J.,

This action was brought in' the name of William C. Lyon to the use of Kenneth M. Blakiston, trading as P. Blakiston’s Son & Co. Before the jury was sworn the record was amended by striking out the name of William C. Lyon and retaining the name of Kenneth M. Blakiston as legal plaintiff. The form of action was assumpsit, and the cause of action declared upon was the breach of a contract, of which the following shipping receipt issued by the defendant, a corporation, to the present legal plaintiff was a material part:

“ (Not Negotiable) Aug. 4, 1902.

“Received of P. Blakiston’s Son & Co.

“ (1) One Box of books.

“Marked—

“W. C. Lyon, 200 Judd Bldg., Honolulu.

“For shipment per............or other steamer.

“Value 152.00............for which we charge..........

“Hawaiian Territory.”

The blank spaces are as they appear in the copy of the receipt attached to the affidavit of defense. Then follow certain pertinent clauses, the material parts of which we quote:

“It is part of the consideration of this contract, and it is agreed that the said Davies, Turner & Co. are forwarders only and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said Davies, Turner & Co. intrusted, or for any loss arising at any time from the dangers of railroads, ocean or river navigation, .... or from any cause whatever, whether arising from the negligence of servants or employees or otherwise, unless in every case, the same is proved to have occurred from the fraud or negligence of said Davies, Turner & Co.”
“And if the same is intrusted or delivered to any express company, railroad, vessel or other carrier, whether named in this receipt or not (which said Davies, Turner & Co. are hereby authorized to do, subject to all the usual conditions of transportation of such carrier), such company or person so selected shall be regarded exclusively as the agent to the shipper or owner, and as such, alone liable, and Davies, Turner & Co. shall not be, in any event, responsible for the negligence or nonperformance of such company or person.”

On the trial of the case the plaintiff gave evidence tending to establish the following facts: The plaintiff was a publisher of books in Philadelphia'. W. C. Lyon was a bookseller in Honolulu. Lyon ordered from the plaintiff, by letter, seven sets of a medical work of several volumes, to be delivered to Lyon in Honolulu, without other directions as to the mode of sending them than that they should be forwarded the quickest way. On August 4, 1902, plaintiff delivered the box of books to the defendant marked as stated in the shipping receipt, paid the freight charges to Honolulu and mailed to Lyon a bill for the price of the books together with the freight charges and cost of packing, and a duplicate of the shipping receipt. The usual time of transit from Philadelphia to Honolulu for goods shipped by freight was from twenty-five to forty days. The package was not delivered to Lyon, but was delivered by mistake to the Honolulu Library, and, unconditional delivery of it to Lyon was not tendered until February, 1903, when he refused to accept it. In the meantime, the plaintiff, at his request, mailed to Lyon seven other sets of the same books, which were received by Lyon about December 15, 1902.

The first question to be considered is, whether the consignor could maintain the action as legal plaintiff. In the foregoing statement we have said that the books were ordered to be delivered to Lyon in Honolulu. The letter containing the order was not produced, but the plaintiff’s shipper testified without objection, that the books were to be so delivered, and while the effect of his testimony on this point was weakened by his cross-examination, it was not wholly destroyed. The subsequent conduct of the parties was in harmony with the contention, that, in the intention of plaintiff and Lyon, the books were to be delivered to the latter in Honolulu. In one of the most recent Pennsylvania cases upon the subject it is said to be well settled that in the absence of an agreement to the contrary, when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser; and especially is this true when a bill of lading naming the purchaser as consignee is transmitted to and received by the purchaser: Dannemiller v. Kirkpatrick, 201 Pa. 218. This doctrine is relied on by appellee’s counsel but it should be noted that the same case is authority for the proposition, that if it is the intention of the parties, and it so appears from the contract, that delivery is to take place at the destination of the property, and that the title is to remain in the consignor until that time, then delivery to the carrier does not divest the title of the vendor to the property, nor pass it to the purchaser, until it reaches its destination, and the hazards of transportation are at the risk of the consignor. “ It, therefore, becomes a question in cases of this character as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute it is a question of law for the court, but if the evidence is conflicting,” and, we add, if different inferences may be drawn from the undisputed facts, “the question must be determined by the jury.” This distinction is well illustrated by a comparison of the case of Griffith v. Ingledew, 6 S. & R. 429, and Hand v. Baynes, 4 Whart. 204. In the latter case, after pointing out that the former case was decided on the ground that the bill of lading vested the legal property in the consignee, and that for the purpose of deciding the legal property, the court would look to the face of the bill of lading, Justice Rogers went on to say: “But this is not a bill of lading but a contract between the consignor and the carrier, and in actions against common carriers, the general principle is, that the right of action is attached to the property.” And in conclusion he said: “But in cases where the right of property is not divested, the consignor can maintain a suit, for he is the person who has sustained the loss, if any, by the negligence of the carrier; and whoever has sustained the loss is the proper party to call for compensation, from the person by whom he has been injured.” One of the rules laid down in Hutchinson on Carriers, which is well supported by principle and authority is, that when the risk of safe transportation of the goods is upon the consignor, he will be considered as the owner for the purpose of maintaining an action against the carrier for their loss or injury: 3 Hutchinson on Carriers (3d ed), sees. 1318-1320. We are of opinion that, while binding directions either way upon the question of the right of the consignor to maintain the action would not have been justified under the evidence, there was sufficient evidence to warrant a jury in finding facts that would entitle the consignor to maintain the action in his own name, if it is maintainable at all.

Next to be considered is the question of variance. The substance of the allegations of the statement of claim relating to this question is that the plaintiff delivered to the defendant, “which is a corporation engaged as a common carrier in the carriage or transportation of goods to the various parts of the world,” the box of books in question consigned to W. C. Lyon, to be by the defendant “safely carried and delivered” to W. C. Lyon; that the defendant “undertook to handle the said books and deliver them to the said W. C. Lyon, as provided in said shipping receipt” (which was attached to and made part of the statement of claim); and that the defendant neglected to deliver the box of books to Lyon within the time required by the terms of the shipping receipt, by reason of which the books became worthless and of no value to Lyon. We remark in passing that the evidence tends to show that they also became pecuniarily worthless to the plaintiff, or any one else, by reason of a new edition having been issued before the offer was made by the defendant to return them to the plaintiff. The reasons stated by the learned trial judge for giving binding directions for the defendant, were first, that there was a variance because the plaintiff had alleged but failed to prove that the defendant was a common carrier; second, that even if the statement were amended so as to charge, or could be construed as charging, neglect or failure to perform its undertaking to forward, there was no evidence to sustain the allegations.

In Bank of Kentucky v. Adams Express Co., 93 U. S. 174, Strong, J., said “We have already remarked that the defendants were common carriers. They were not the less such because they had stipulated for a more restricted liability than would have been theirs had their receipt contained only a contract to carry and deliver. What they were is to be determined by the nature of their business, not by the contracts they made respecting the liability that should attend it. Having taken up the occupation, its fixed legal character could not be thrown off by any declaration or stipulation that they should not be considered such carriers.” In view of this principle it becomes important to inquire whether under the evidence a finding of a jury that the defendant, was engaged in the business of a common carrier, could be sustained. “A common carrier has been defined to be one who undertakes for hire and reward to transport goods of such as choose to employ him from place to place:” Beckman v. Shouse, 5 Rawle, 179. This is the definition given by Chief Justice Parker in Dwight v. Brewster, 18 Mass. 50, and is said to be the one usually adopted in this country: 1 Hutchinson on Carriers (3d ed.), sec. 47, note. In Gordon v. Hutchinson, 1 W. & S. 285, Chief Justice Gibson said that the best definition of a common carrier in its application to the business of this country, was that taken from Gisbourn v. Hurst, 1 Salk. 249, where he is said to be any man undertaking for hire to carry the goods of all persons indifferently. To constitute a common carrier, it is not essential that the person or corporation undertaking such service own the means of transportation. This is well illustrated by the Express Company cases cited in the appellant’s brief, which cases likewise hold that the mere assumption of the name of forwarders by such companies and the insertion in the bills of lading and shipping receipts issued by them, of a clause that the company shall be held liable only as a forwarder, will not relieve the company from liability as a carrier. As has been well said, the law, regardless of forms or names, will look at the nature of the business in determining whether it is that of a common carrier. It would unduly prolong this opinion to quote the entire testimony of the defendant’s general manager, and its manager in Philadelphia, as to the nature of the business conducted by it, but viewing their testimony in the light of the principles above referred to, it is not so clear to us as it seems to be to the learned trial judge and the appellee’s counsel, that the court could declare as matter of law that the business was not that of a common carrier.

But, assuming that the evidence was insufficient to sustain the averment that the general business of the defendant was that of a common carrier in the strict sense of the term, does it necessarily follow that there was a fatal variance between the allegata and the probata? We think not. The averment of the statement of claim, that the defendant undertook to handle the said books and deliver them to W. C. Lyon is qualified by the words “as provided in said shipping receipt.” A breach of the contract, thus referred to as being evidenced by the shipping receipt, could be shown without proof that the general business of the defendant was that of a common carrier, and if shown, there was no such substantial variance as ought to defeat the plaintiff. According to the defendant’s own showing, the box was called for by its hired truckman, hauled to the railroad and there shipped by rail to New York, consigned to itself, the defendant having placed on the box the additional marks D. T. C., indicating Davies, Turner & Co. On August 24, 1902, it was delivered, according to the defendant’s allegations, to the American Steamship Company in New York, to be transported to Honolulu and delivered to W- G. Erwin & Company, delivery agents there. In another portion of the witness’s testimony they are spoken of as “the firm which we give business to for the purpose of distribution.” It is thus seen that the defendant’s duty did not terminate and its control over the package was hot surrendered when it was delivered to the steamship company, but the control was retained for the purpose of delivery through its agents in Honolulu to Lyon. At least, this is an inference which fairly may be drawn from the testimony. This being so, we think a jury would have been warranted in inferring negligence from failure to deliver or to tender delivery to Lyon until February, 1903 (if the plaintiff’s testimony as to the usual time required for transit from New York to Honolulu is to be believed), and the fact that the package was delivered to the Honolulu Library; and if the jury could infer negligence from these facts, binding directions for the defendant could not be given. The testimony adduced by it to sustain its contention, that the delay in the delivery was due to the mistake of the steamship company was chiefly oral, and as the credibility of the -witnesses was involved, the question whether the defendant had accounted for the delay in such manner as to repel any prima facie presumption or inference of negligence was for the jury under appropriate instructions from the court.

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


source: Caselaw Access Project

license: Public Domain

text:
    Lieb, Appellant, v. Painter.

      Contract — Delivery of stock — Corporation—Breach of contract — Defenses.

    1. In an action to recover money paid by plaintiff to defendant under an alleged contract by which the defendant was to deliver stock in a particular company then in process of formation, and the defendant denies the testimony of the plaintiff in support of the statement, and avers that the money paid had been paid to the defendant as an officer or agent of the company, and as a part of plaintiff’s stock subscription, the question of defendant’s liability is, under the conflicting testimony, a question for the jury.
    2. In such a case the fact that no stock was ever issued by the company, and that this was through no fault of the defendant, or the fact that the defendant expended the money for the company’s benefit, or both facts combined, does not constitute a defense.

      Trial — Evidence—Offers—Practice, C. P.

    3. It is always the duty of a party making an offer when its admissibility is challenged to state the purpose in such manner that court may perceive its relevancy.
    Argued Oct. 8, 1909.
    Appeal, No. 42, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 1,746, on verdict for defendant in case of William S. Lieb v. Charles E. Painter.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover back $1,000 paid by plaintiff to defendant under an alleged agreement on the part of the defendant to assign to plaintiff stock of a corporation in process of formation. Before Carr, J.
    At the trial plaintiff made the following offer:
    I offer to show by Loder that he was present at the time this note passed, this being corroborative of Mr. Leib’s statement that the transaction took place at the custom house.
    Exception noted for plaintiff by direction of the court. [1]
    I also offer to show the whole transaction with regard to the Southern Paint Company and show that Mr. Painter, as a matter of fact, was the Southern Paint Company and it was because of him that no stock was issued.
    Exception noted for plaintiff by direction of the court. [2]
    I now make the offer to corroborate the testimony of the plaintiff in every essential detail with regard to this contract with Mr. Painter, with regard to the time, place and manner in which it took place, in regard to the conversation had with Mr. Painter and the plaintiff. Exception for plaintiff. [3]
    The court charged in part as follows:
    [You must find also that the defendant has refused to deliver that stock. That includes other propositions, viz.: That there has been authority given for the issuance of the stock, or that the failure to issue has been through the fault and wrong of the defendant.] [4]
    [If you believe that it has never been issued through no fault of his own, then the defendant is not responsible, even though it were a sale of his individual stock.] [6]
    [There is some vague argument made before you that the fault was in Painter, that he mismanaged this company, and it was for that reason that the stock was not issued. If you believe there was such fault, it must be such fault as would excuse the performance of the work of the directorate in the company to issue the stock. In other words, if you believe it was purely a business misadventure and through no fault of Painter’s the stock was not issued, he would be let out.] [7]
    Plaintiff presented this point:
    If the jury believe that the plaintiff paid money to the defendant on the faith of defendant’s promise to deliver stock and defendant failed to deliver the stock, then the plaintiff has a right to recover the money so paid, from the defendant in this action. Answer: Refused. [10]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions, and (4-10) various instructions including those quoted above.

      Wm. J. Conlen, of Conlen, Brinton & Acker, for appellant.—
    The plaintiff’s position is in accord with the decided cases in this and other jurisdictions: Hudson v. West, 189 Pa. 491; Rose v. Foord, 30 Pac. Repr. 1114.

      Henry J. Scott, for appellee.
    April 18, 1910:
   Opinion by

Rice, P. J.,

This was an action of assumpsit to recover $1,000, which, it was alleged by plaintiff, was paid by him to defendant under a contract of the latter to deliver to him therefor stock in a corporation then in process of formation. The statement of claim alleges that there was no other consideration for the payment than the promise and agreement of defendant to transfer the stock, and that the said consideration wholly failed by reason of the nonperformance by the defendant of his obligation. The contention of the defendant was that the plaintiff agreed to put $5,000 into the company, and that the'contract under which the $1,000 was paid, was not between the plaintiff and the defendant individually, but between the plaintiff and defendant as an officer or agent of the company. This was the primary question to be determined. There was evidence from which it could be determined either way and therefore it was for the jury. If the jury determined that question in the defendant’s favor, in other words, found that the contract was with the company acting through its officer or agent, and the money was paid to the defendant as such officer or agent, then the plaintiff could not recover under the pleadings, whatever might be his remedy against the company, or his right to recover against the defendant under different pleadings. If, on the other hand, the jury determined the question in the plaintiff’s favor, in other words, found that the money was paid to and received by the defendant in his personal capacity only, upon his unconditional personal undertaking to deliver stock of the company therefor, and there was neglect or refusal on his part to perform within a reasonable time, then the question arises whether the fact that no stock was ever issued by the company, and this was through no fault of the defendant, or the fact that the defendant expended the money in the purchase of machinery and in other ways for the company’s benefit, or both facts combined would constitute a defense. We think not, unless the company’s failure to issue stock was attributable to some unwarranted action of the plaintiff. The case of Hudson v. West, 189 Pa. 491, while not exactly like the present in all its facts, is closely analogous in principle and sustains the foregoing conclusion. The case of Rose v. Foord, 96 Cal. 152; (30 Pac. Repr. 1114), cited in the appellant’s brief, is directly in point. It was there held that where the purchaser of shares of stock to be issued by a mining corporation pays the purchase price, and the corporation is prevented by an injunction from issuing the stock so that the vendor cannot perform his contract, the purchaser, after waiting a reasonable time for the repayment of the purchase money, may maintain an action therefore against the vendor’s administrator. As to the plaintiff’s remedy and the measure of recovery, the court said: “He was not confined to an action for damages for breach of contract to sell and deliver, and, indeed, such an action would have afforded him no redress, for the stock never having had an existence had no market value, and the rule of damages in such actions could not have been applied.”

We need not discuss, seriatim, the several portions of the charge assigned for error. Enough has been said to indicate wherein we differ from the learned trial judge, and the grounds upon which we sustain the fourth to the ninth assignments inclusive. It will be seen also from what we have said, that the plaintiff was not entitled to an unqualified affirmation of his point, the refusal of which is the subject of the tenth assignment of error. The manner in which the case should be submitted to the jury has been sufficiently indicated.

The offer embraced in the second assignment might well have been rejected because of its vague and indefinite character, If the plaintiff deemed it important to show in rebuttal “that it was because of the defendant that no stock was issued,” he ought to have offered to show the facts from which the jury would be asked to draw that conclusion, so that the trial court, as well as the appellate court, could determine their relevancy and sufficiency for the purpose stated. The offers embraced in the first, and third assignments were to corroborate the plaintiff. This evidence, if admissible at all, was admissible in chief, and it is not clear that it was admissible in rebuttal, unless as argued by appellant’s counsel, the purpose was to contradict the defendant. But this was not stated as the purpose of the offers, therefore the court ought not to be convicted of error in rejecting them. “It is always the duty of a party making an offer when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy: Germantown Dairy Co. v. McCallum, 223 Pa. 554, citing Piper v. White, 56 Pa. 90. These assignments are not sustained.

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


author: Head, J.,

text:
    Hiestand, Appellant, v. Keath.

      Mechanics’ lien — Striking off lien — Matters dehors the record — Act of June 4, 1901, sec. 23, P. L. 431.
    1. Under the Act of June 4, 1901, sec. 23, P. Ij. 431, the courts of common pleas have jurisdiction to strike off a mechanic’s lien even for matters dehors the record, when the conditions called for in the section are present.
    2. A single lien filed against two structures will be stricken off; and the fact that the structure liened was in reality a double structure may be shown by matter dehors the record.
    Argued Nov. 11, 1909.
    Appeal, No. 167, Oct. T., 1909, by plaintiffs, from order of C. P. Lancaster Co., Mechanic’s Lien Docket No. 7, p. 85, making absolute rule to strike off mechanic’s lien in case of E. Frank Hiestand, Henry S. Hiestand and George Hiestand, partners trading and doing business as B. F. Hiestand and Sons v. Willis Keath.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to strike off mechanic's lien. Before Landis, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order making absolute rule to strike off mechanic’s lien.

      W. U. Hensel, with him W. C. Rehm, for appellants.
    — -The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it, must depend upon the statute, and must be pursued in strict compliance with the terms of the statute: Stoke v. McCullough, 107 Pa. 39; Lee v. Burke, 66 Pa. 336; O’Hara v. Baum, 82 Pa. 416; Miller v. Bedford, 86 Pa. 454; Bohem v. Seabury, 141 Pa. 594; North v. Yorke, 174 Pa. 349; Hall v. Publishing Co., 180 Pa. 561; McVey v. Kaufmann, 223 Pa. 125; Burger v. Moss, 225 Pa. 400.

      S. Z. Moore, with him W. S. Buck, for appellee.
    March 3, 1910:
   Opinion by

Head, J.,

The lien, which the learned court below struck off, described the structure to be charged, thus: “One double two-story frame house, to be used as a dwelling house.” After the lien was filed, the owner presented a petition praying to have it stricken off. Some formal defects, of a minor character, were alleged, but these were cured by an amendment duly allowed by the court. The main allegation of the petition, however, remained, viz.: That the petitioner had erected “two adjoining frame dwelling houses,” and that the claimant had filed a single lien against both contrary to the prohibition of the statute. A rule to show cause was granted and an answer filed affirming that the lien was in statutory form and described a structure as contemplated by the act.

A certain paper called a “stipulation,” signed by counsel on both sides, was then filed under leave of the court. It contained statements of fact relating to the interior arrangement of the structure, partitions, entrances, exits, etc., and its destined use for two families. The manifest purpose of this was to save the expense and delay incident to taking depositions or producing witnesses to prove, in the ordinary way, the facts therein stated. In other words, they were simply admissions for the purposes of trial in the proceeding then pending.

From the record, thus made up of the petition, answer and stipulation, the learned judge below reached the conclusion of fact that the structure, described in the lien as one, was in reality two separate buildings and therefore struck off the lien. If the learned court below was vested with'jurisdiction to strike off the lien upon the ground stated, the record exhibits no reason why an appellate court should be asked to reverse the conclusion of fact reached at the hearing. The rule governing our action in such matters has been so often stated it needs not repetition here. It having been thus made to appear that a single lien had been filed against a “ structure ” which was in fact “two adjoining frame dwelling houses,” contrary to the prohibition of the act of 1901, had the court below power to strike it off? We are urged to answer in the negative because the ground- for the court's action was not exhibited on the face of the lien, but rested on matters dehors the record.

Prior to the passage of the act of 1901, it was clearly held in a number of cases, notably in Stoke v. McCullough, 107 Pa. 39, that a lien could not be struck off for matters dehors the record even if such matters, when properly proven on the trial of the scire facias, would amount to a complete defense. The reason of the conclusion is stated in a line by Mr. Justice Clakk: “The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute.” An owner, then, having a sound defense to a lien, but one resting on matters of fact dehors the record, could but file his affidavit of defense to the scire facias and enter his plea. He was then obliged to wait until his case was reached for trial although, in the meantime, his property was incumbered with a lien which ought never to have been filed.

The twenty-third section of the act of 1901, gave to “any party having a lien against, estate in or charge upon the property included in such claim” the right to begin a proceeding by petition, “averring that the date mentioned in the claim as the time when the structure or improvement was commenced is incorrect,” etc., specifying other acts outside the record of the lien. “The court shall from the pleadings, aided as to the material disputed facts, if any, by depositions or by a hearing at bar, make such order or decree as the facts shall warrant. Like proceedings shall be had if the petition shall aver that the claim is for any reason invalid, has been paid, waived or released or should not legally or equitabty be allowed as a claim against the property.” The act then saves to either party, upon request, the right to have any material disputed facts tried by a jury.

It would thus seem that in certain cases, where the facts are not disputed or no request for a jury trial is made, the court is invested with jurisdiction, on the petition of a proper party, to grant summary relief against a lien which the claimant cannot legally sustain, even though the facts, upon which the decree rests, are dehors the record of the lien. It would be anomalous to conclude that the legislature had thus intended to furnish, for mortgagees, owners of ground rents or other parties having a lesser interest in the liened property,' a speedy remedy for the injury following the filing of a lien that could not be sustained, when such remedy was denied to the owner having a greater interest.

An examination of the notes of the commentator to be found in 3 Stewart’s Purdon’s Digest, p. 2493, pi. 38, points to the conclusion that sec. 23 of the act of 1901 has been generally regarded as having been intended to vest in the courts of common pleas the jurisdiction to strike off a lien, even for matters dehors the record, when the conditions called for in the section are present. The reasons for such a construction of the section are persuasively stated in an opinion by Judge von Moschzisicer, reported in 13 Pa. Dist. Rep. 451. So in Cox v. Croft, 39 Pa. Superior Ct. 551, the court below struck off a lien where it appeared, without dispute, from the petition and answer that The claimant was, in fact, neither a contractor nor a subcontractor, and thus not within the privileged class, and this court affirmed the judgment.

In no case that has been brought to our attention or that we have been able to discover, has the Supreme Court undertaken to construe the section of the act of 1901, now under consideration. It is true that in Burger v. Moss Cigar Co., 225 Pa. 400, — reported since the judgment in this case was entered — the owner filed a petition to have the lien struck off because the right to file it had been waived by a contract duly executed by the'contractor and filed in the prothonotary’s office. There was no material fact in dispute and no demand for a jury trial and the court below struck off the lien. The Supreme Court, following the law as it had been declared to be, prior to the act of 1901, reversed the judgment. A careful examination of the report of that case as well as of the briefs of counsel, shows that the twenty-third section of the act of 1901 was in no way brought to the attention of the court ; and the opinion does not indicate that the section was there construed.

We think therefore we may properly hold, without even seeming to disregard any authoritative utterance of our court of last resort, that the proceeding in the court below was well founded on the section of the act already quoted, and that upon the facts as found, the court was invested with jurisdiction to strike off the lien.

Judgment affirmed.

CERTIFICATE.

All of the judges who heard this case certify that, in their judgment, the questions involved are so important as to make it expedient that the case should be decided by the Supreme Court and the case is accordingly so certified.

By the Court.


author: Morrison, J.,

text:
    Rothacker v. Philadelphia, Appellant.

      Practice, C. P. — Motion for judgment non obstante veredicto — Exception — Appeals.
    1. A party asking for a judgment non obstante veredicto and failing to secure it must ask for and obtain an exception. The court is not required to grant an exception and place it in the record, unless it is asked for by the ruling party. An assignment of error to such ruling of the court without an exception having been allowed will not be considered.

      Negligence — Municipalities—Sidewalks—Ice and snow■ — Evidence. -

    2. In an action to recover damages for personal injuries sustained by a fall on an ice-covered sidewalk, the question of the municipality’s negligence is for the jury, where a number of witnesses testify that an unusual amount of snow had fallen during the winter, that the Sidewalk had not been cleaned during the winter, that the only passable place thereon was a narrow path described by one of the witnesses as a snake path, and that the obstruction had continued for a long time prior to the date of the accident.
    3. In such a case the plaintiff is chargeable with contributory negligence as a matter of law where the evidence shows that when the plaintiff approached the pavement she saw its dangerous condition, that she could have avoided it by going upon the cartway or to the opposite sidewalk both of which were clear and in good order, and that she persisted in going along the obstructed sidewalk for about fifty feet before the accident occurred.
    Argued Oct. 14, 1909.
    Appeal, No. 13, Oct. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 1,357, on verdict for plaintiff in case of Charlotte Rothacker v. Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Staake, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.

      Errors assigned were (1) refusing binding instructions for defendant; (2) refusal of motion for judgment non obstante veredicto.

      Frederick Beyer, with him Robert Braman, assistant city solicitors and J. Howard Gendell, city solicitor, for
    appellant.— There is no evidence of any obstruction in this path of which the city was bound to take notice, and all the testimony negatived such a thought, and even if there had been such obstruction, there is no evidence with regard to the character of the same, or as to the length of time it had existed: Dehnhardt v. Phila., 15 W. N. C. 214; Gardner v. Phila., 221 Pa. 247; McCabe v. Phila., 217 Pa. 140; Garland v. Wilkes-Barre, 212 Pa. 151; Ingram v. Phila., 35 Pa. Superior Ct. 305.
    The plaintiff was guilty of contributory negligence in walking upon an accumulation of ice, or snow, if, as so contended by her, it had been a source of danger, and she being in nowise prevented from conveniently avoiding it: Sickles v. Phila., 209 Pa. 113; Dehnhardt v. Phila., 15 W. N. C. 214; Fleming v. Lock Haven, 15 W. N. C. 216; Shallcross v. City, 187 Pa. 143; Dwyer v. Port Allegheny Borough, 216 Pa. 22; City of Erie v. Magill, 101 Pa. 616; Haven v. Bridge Co., 151 Pa. 620.

      William J. Smyth, for appellee.
    — The municipality was guilty of negligence: Dehnhardt v. Philadelphia, 15 W. N. C. 214; Moore v. City, 33 Pa. Superior Ct. 194; Steck v. Allegheny, 213 Pa. 573; Reynolds v. Philadelphia, 221 Pa. 51; Gardner v. Philadelphia, 221 Pa. 247; Holbert v. Philadelphia, 221 Pa. 266.
    Appellee was not guilty of contributory negligence: Mellor v. Bridgeport, 191 Pa. 562; Dean v. City of New Castle, 201 Pa. 51; Reed v. Schuylkill Haven Boro, 22 Pa. Superior Ct. 27; Butcher v. Philadelphia, 202 Pa. 1; Brown v. White, 206 Pa. 106.
    April 18, 1910:
   Opinion by

Morrison, J.,

On the afternoon of February 15, 1905, the plaintiff, Charlotte Rothacker, with her daughter, a young lady, left thier home at the corner of Thirty-first and Master streets in the city of Philadelphia and they proceeded to Thirty-second street and traveled north on that street to No. 1731 where they called upon a friend. Number 1731 is on the east side of Thirty-second street. About 5 o’clock of the same afternoon, the plaintiff and her daughter were going home along the east side of Thirty-second street and they came to a pavement in front of a vacant lot and when in about the middle of the 100 feet of said pavement fronting said lot, the plaintiff slipped and fell and was seriously injured. The vacant lot was separated from the pavement by a board fence and according to the evidence of the plaintiff and her daughter and six or eight other witnesses, called by the plaintiff, the pavement where she fell was very badly obstructed with snow and ice and it had been in that condition for a long time. The defendant offered no evidence but requested the learned court below to give a binding instruction to the jury in favor of the defendant. This point was refused and the court noted an exception for the defendant. The first assignment of error is based upon this point and answer.

The learned court submitted the case to the jury upon the questions of the defendant’s negligence and the contributory negligence of the plaintiff. The jury having found a verdict in favor of the plaintiff, defendant’s counsel moved for judgment non obstante veredicto. This motion was subsequently refused by the court below. This gives rise to the second assignment of error which is that the court below erred in refusing to grant defendant’s motion for judgment non obstante veredicto upon the whole record.

We have carefully examined the record and find no exception to this action of the court and therefore we cannot sustain the second assignment. We have repeatedly held that under the provisions of the Act of April 22, 1905, P. L. 286, an exception must be granted to the party against whom the decision is rendered on a motion for judgment non obstante veredicto, and if no such exception is granted, an appeal from such order will be quashed. See International Savings & Trust Company Appellants, v. Printz, 37 Pa. Superior Ct. 134; McGinnis v. St. Paul Fire & Marine Insurance Co., 38 Pa. Superior Ct. 390. Those cases establish the rule in this court that the party asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception, otherwise an appeal from the action of the court will be quashed; and that the court is not required to grant an exception and place it in the record, unless it is asked for by the losing party. In addition to this, on March 3,1910, we filed a per curiam opinion at Williamsport quashing an appeal because the record failed to show that an exception to the action of the court upon the motion for judgment non obstante veredicto was asked for or granted.

We further note that the printed record in the present case does not disclose even a general exception to the charge, but there is an exception noted to the refusal of the court to give a binding instruction in favor of the defendant.

The learned counsel for the appellant has devoted considerable time, and space in arguing and citing authorities in support of the proposition that the evidence is not sufficient to warrant a jury in convicting the defendant, of negligence. We cannot agree with this contention. We find in the record the testimony of six or eight witnesses, in addition to the plaintiff’s own testimony, tending to establish the fact that the pavement in front of the vacant lot, where the accident occurred, had been badly obstructed with ice and snow for a long time previous to February 15, 1905; that, on the day of the accident the snow and ice was piled upon this pavement to a considerable thickness and that the only passable place thereon was a narrow path about a foot wide leading along the pavement near the board fence and at least one of the witnesses describes it as a snake path, meaning, we suppose, that it was crooked and irregular; several of the witnesses testified that there had been an unusual amount of snow and ice in Philadelphia during that winter and that this 100 feet of pavement had not been cleaned during the winter. We think there was ample evidence from which the jury could find the negligence of the defendant. There is, therefore, nothing important left in the record for consideration, except the question of whether the court should have given a binding instruction in favor of the defendant on the ground of the pontributory negligence of the plaintiff.

On February 15, 1905, the sun set about 5.33 o’clock p. m., and as the plaintiff and her daughter fix the time of the accident at 5 o’clock of the same afternoon, they, therefore, approached this obstruction of snow and ice on the sidewalk in daylight. Their own testimony shows that they had to walk single file in the narrow path and that the snow and ice was considerable higher than the path on each side. The plaintiff testified in part as follows:

“ Q. At the time you passed over tins sidewalk you observed that there was an accumulation of ice and snow? A. Yes. Q. That is right, isn’t it? A. Yes, that is right. Q. And you said there was a pathway running through this accumulation of ice and snow — that is correct, is it not? A. Yes. Q. Did you travel on the pathway, or did you travel on the snow? A. We traveled on the pathway. We couldn’t do any better— couldn’t do no other way.” Again she said: “Q. You had found the sidewalks perfectly clear on the west side when you traveled there on your journey to visit your friend? A. Yes. Q. Why didn’t you walk over on Columbia avenue to the west side of Thirty-second street on your return, the same as you had done on going there? A. Well, we were on that side, we were there in the path and we couldn’t get out anymore — it was too slippery.” Again she testified: “ Q. I say as you came to the lot you were able to see that it was not clean — that is true is it not? A. Yes. Q. And there were these ridges over this accumulation of snow that you speak of? A. Yes. Q. And between these accumulations of snow was this path upon which you slipped — that is right? A. That is right.” The daughter who was with the plaintiff describes the pavement as thickly covered with ice and snow and after we got on it we found we could not cross-over again. It was too slippery and the whole pavement was covered with ice so we could not cross over. She describes the path and says the sides of the path were- all ice, both sides were higher and even more hilly than the path was.

Now it will be remembered that the plaintiff and her daughter had passed along Thirty-second street going north about an hour before the accident; they claim to have been on the opposite side of the street when they passed this vacant lot and all of the witnesses agree that the street, including the sidewalk opposite the obstructed pavement, were clear and in good order. There is considerable testimony that the snow and ice was of such a -character where the accident occurred that people avoided it, some walking in the street, and others going across to the sidewalk on the west side. The evidence shows that the plaintiff and her daughter had traveled along the path on this obstructed sidewalk for about fifty feet before the accident occurred. From the evidence of all of the witnesses who described the condition of the sidewalk, the inference is certain and irresistible that when the plaintiff and her daughter approached this ice obstructed pavement, they saw it was dangerous, yet they voluntarily attempted a known dangerous way which could, without inconvenience, have been avoided by simply stepping out into the street and going past the obstructed 100 feet of walk, or they could have crossed the street and gone towards their home on the west side thereof where the walk was in excellent condition as they well knew because they had passed over it about an hour before.

A careful examination of all of the testimony leads a majority of this court to the conclusion that the case is ruled by Dwyer v. Port Allegany Borough, 216. Pa. 22. Indeed, the cases are so similar in their facts that the opinion of Mr. Justice Stewart, in affirming the court below in refusing to take off a compulsory nonsuit, almost seems as if it was written to apply to the present case. But in the Port Allegany case, the plaintiff testified that it was dark when he undertook to pass over the ice obstructed sidewalk. He also testified: "When I first started on the walk I didn't know the condition of it.” But in the present case, the plaintiff and her daughter saw the condition of the sidewalk; they saw that they had to follow a narrow, crooked path, slippery in the bottom and with a ridge or bank of ice on each side of the path, and they attempted this known and dangerous way and proceeded about fifty feet when the accident occurred. We refrain from discussing the other cases cited by the respective counsel for the reason that we are unable to see why the Port Allegany borough case does not convict the court below of error in refusing to instruct the jury that the plaintiff could not recover on account of her own contributory negligence.

We sustain the first assignment of error and reverse the judgment, and judgment is here entered in favor of the defendant.


text:
    Collings Tailor Company, Appellant, v. Appenzellar.

      Contract — Sales—Rescission—Insolvency of purchaser.

    In an action of replevin by the seller of goods against the receiver of the purchaser, an insolvent corporation, the plaintiffs are not entitled to recover where it appears that the goods were ordered honestly; that before they were delivered the corporation knew that a bill in equity had been prepared and would be presented with a request for the appointment of a receiver, and that the company would make no defense thereto but would admit the truth of the allegation of the bill; that at the time it received the goods the company knew that it would be unable to continue business; and that the company did not disclose these facts to the plaintiffs who were wholly ignorant of them, although, no fraud, misrepresentations or collusion had been practiced.
    Argued Oct. 18, 1909.
    Appeal, No. 233, Oct. T., 1908, by plaintiff, from order of C. P. Franklin Co., April T., 1908, No. 19, discharging rule for judgment for want of a sufficient affidavit of defense in case of the Collings Tailor Company v. W. 0. Appenzellar and E. 0. Smiley, receiver of the Chambers-burg Woolen Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Replevin to recover goods sold and delivered to the Chambersburg Woolen Company.
    Rule for judgment for want of a sufficient affidavit of dc^ fense. Before Gillan, P. J.
    The facts appear by the opinion of the Superior Court.

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

      John R. Ruthrauff, of Ruthrauff & Nieblas, for appellant.—
    The receiving and retaining of the goods, under the circumstances, amounted to such fraud in law as entitled the vendor to rescind the contract and recover its goods: McKibbin v. Martin, 64 Pa. 352; Bughman v. Central Bank, 159 Pa. 94; Levan’s App., 112 Pa. 294; Claster Bros. v. Katz, 6 Pa. Superior Ct. 487; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637.

      Charles Walter, with him Arthur W. Gillan, for appellees,
    cited: Printing Press Co. v. Publishing Co., 213 Pa. 207.
    April 18, 1910:
   Opinion by

Rice, P. J.,

This action of replevin was brought by the seller of goods against the receivers of an insolvent corporation, the buyer, to recover the goods after they had been delivered to the corporation and had passed into the control of the receivers. The following facts are not now in dispute: On December 20, 1907, the Chambersburg Woolen Company ordered from the plaintiff, doing business in Ohio, goods to be delivered f. o. b. cars Chambersburg. The plaintiff accepted the order, shipped the goods on December 31, and on January 6, 1908, they were delivered by the railroad company to the buyer. On the following day a bill in equity was filed against the woolen company by certain of its creditors, in which it was averred, inter alia, that the company was not able to meet its obligations nor to convert its assets into cash for the purpose of paying them; that suits were imminent, and if judgments should be obtained and executions issued, the assets of the company would be greatly depreciated in value and the interests of the creditors greatly prejudiced thereby, and praying that the court make a decree that the indebtedness of the defendant be ascertained and determined and that a sale of the premises and property of the corporation be made under the direction of the court. The bill further prayed, that an injunction issue against the defendant restraining it from making or causing to be made any sale of its property or assets; that the proceeds of any sale made under the direction of the court be distributed among the creditors according to their respective rights; that a receiver or receivers be appointed to take possession of the property and effects of every description of the defendant in the interest of creditors; and that the defendant be enjoined from interfering with the property or affairs of the corporation, and from making or causing to be made any disposition thereof other than to preserve and deliver the same to the receivers. To this bill an answer was filed on the same day, by the woolen company, through its president, admitting the truth of the allegations; whereupon the court made a decree in accordance with the prayers of the bill and appointed these defendants receivers, who at once filed bond and took possession of the property and assets of the company. Two days later, the plaintiff, upon hearing of the insolvency of the company and the appointment of the receivers, notified the latter of their rescission of the contract of sale and requested them to return the goods to them. This the receivers declined to do, whereupon the plaintiffs, by leave of court, brought this action of replevin. The receivers filed a counter bond and retained the goods. This appeal is from the order refusing judgment for want of a sufficient affidavit of defense.

The defendants, whilst not admitting, do not deny the averment of the statement of claim that at the time the order for the goods was given the company was insolvent and its insolvency was known or ought to have been known to its officers. This fact, however, would not, standing alone, entitle the plaintiffs to rescind the sale and reclaim the goods after full delivery. But these additional facts are alleged in the statement and not specifically denied; first, before the goods were delivered by the railroad company to the woolen company the latter knew that the bill in equity had been prepared and would be presented to court on the following-day with a request for the appointment of a receiver or receivers, and that it, the woolen company, would make no defense thereto, but would admit the truth of the allegations of the bill; second, at the time it received the goods the company knew that it would be unable to continue business or to pay for them; third, the company did not disclose these facts to the plaintiffs and the latter were wholly ignorant of them.

The question for decision at this stage of the case is: Did the receiving and retaining of the goods, under the circumstances stated, amount to such fraud in law as entitled the seller to rescind the sale and reclaim the goods, even after they had gone into the hands of the receivers? In order that there may be no misunderstanding as to the precise question for decision, it seems well to note, that it is not alleged that at the time the woolen company ordered the goods it did not honestly intend to pay for them, or that the equity suit was instituted or carried on through collusion between the plaintiffs in the bill and the woolen company, or. at the latter’s suggestion, or that in filing an answer admitting the allegations of the bill, it did not answer truly, or that there was any ground upon which it could resist the granting of the decree prayed for. The absence of these facts, it seems to us, distinguishes the case from Bughman v. Central Bank, 159 Pa. 94, and Claster v. Katz, 6 Pa. Superior Ct. 487, upon which appellant’s counsel rely as controlling authorities. In the former case, the purchasers, before delivery into its barges of all of the coal ordered, not only committed an act of insolvency by confessing judgment and giving a bill of sale of practically all its coal boats, including the two barges in question, but in fact disabled themselves from continuing their business and practically brought it to an end. The court said: “This was a most material fact in the transaction. It was such a change in circumstances as the vendor was entitled to know, and it does not admit of doubt that if he had known it, he would not have delivered the coal. In the New York cases this fact makes the purchase a fraud in law, and is conclusive: Mitchell v. Worden, 20 Barb. 253. This we think is the sound and true rule.” In Claster v. Katz it was said that the confession of judgment by a buyer of goods between the purchase and delivery of the same is not, per se, such a fraud upon the seller as entitles the latter to rescind the sale. “But where, in addition to insolvency known to the buyer and undisclosed to the seller, the buyer, before the delivery of the goods, confesses a judgment which is enforceable at once, and he knows that the effect of its enforcement will be to disable him from containing his business and to bring it to an end, and it is so used, these additional circumstances are sufficient, in our opinion, to take the case out of the strict rule of Smith v. Smith and kindred cases.” In the present case the woolen company did nothing and the plaintiffs in the bill in equity did nothing before the goods were delivered to the former by the railroad company to change the conditions, and it is distinctly averred in the affidavit of defense, that the condition of the company was the same at the time of its receipt of the goods as it was when they were ordered. The doctrine of Smith v. Smith, 21 Pa. 367, as to the purchase by one knowing himself to be insolvent and intending not to pay, was severely criticised in Bughman v. Central Bank; nevertheless, the case was declared to be authoritative for what was actually decided in it. So that we must regard it as settled law in Pennsylvania that an intention even of an insolvent buyer at the time of the purchase not to pay does not amount to fraud in law, unless some misrepresentation, trick or artifice, or conduct which involves a false representation, be added: Reed v. Felmlee, 25 Pa. Superior Ct. 37. The mere fact that the woolen company intended not to resist the equity suit, which it expected would be instituted on the following day, does not, in our opinion, put the plaintiffs’ claim to rescind, and especially to reclaim the goods after they went into the hands of the receivers, upon a higher plane either of law or morals, than would the fact, which is not alleged, that when it ordered them it intended not to pay for them. The case may present an entirely different aspect when -all the facts are fully developed on the trial, but as now presented it is not clear that the court ought to have held that the sale was void for fraud in law.

The appeal is dismissed without prejudice, etc., at the cost of the appellants.


text:
    Commonwealth v. Wilson Female College, Appellant.

      Road law — Boroughs—Vacation of street — Turnpike companies.

    A borough has authority to vacate a highway wholly within its limits although such highway was not laid out by the' corporate authorities of the borough, but was originally laid out and afterwards legally abandoned by a turnpike company. Such authority may be found in secs. 2 and 27 of the General Borough Law of April 3, 1851, P. L. 320, and may be exercised where the terminus of the borough street is coincident with the terminus of a turnpike road.
    Argued Oct. 19, 1909.
    Appeal, No. 201, Oct. T., 1909, by defendant, from judgment of Q. S. Franklin Co., April Sessions, 1909, No. 33, on verdict of guilty in case of Commonwealth v. Wilson Female College.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Reversed.
    Indictment for nuisance. Before Gillan, P. J.
    The opinion of the Superior Court states the facts.
    The court gave binding instructions for the commonwealth.
    Verdict of guilty upon which judgment of sentence was passed.

      Error assigned was in giving binding instructions for the commonwealth.

      Walter K. Sharpe, with him Irvin C. Elder, for appellant.—
    Since the Act of April 3, 1851, P. L. 320, the court of quarter sessions has no jurisdiction over a public road which lies wholly within the borders of two adjoining boroughs, West Liberty and Knoxville Roads, 20 Pa. Superior Ct. 586.
    The policy of legislation in Pennsylvania relating to boroughs is to subject the highways in them to the control of their municipal authorities as exclusively as is consistent with the duty of affording protection to citizens. The general borough laws indicate the legislative, intent to secure uniformity of plan and adequate municipal protection in the establishment and maintenance of borough highways: Norwegian St., 81 Pa. 349; South Chester Rd., 80 Pa. 370; Parkesburg Borough Sts., 124 Pa. 511; Commonwealth’s App., 9 Atl. Repr. 524.

      Charles Walter and O. C. Bowers, with them D. Edward Long, district attorney, and Arthur W. Gillan, for appellee.—
    For the obstruction of the turnpike an indictment will lie: McManus’s App., 5 Pa. Superior Ct. 65; Northern Central Ry. Co. v. Com., 90 Pa. 300; Lancaster Turnpike Co. v. Rodgers, 2 Pa. 114.
    Power to vacate a road extending from a point within to a point without the borough is in the quarter sessions and not the borough councils: Palo Alto Rd., 160 Pa. 104; Somerset & Stoystown Rd., 74 Pa. 61.
    April 18, 1910:
   Opinion by

Rice, P. J.,

The highway, for the obstruction of which the defendant was indicted and convicted, lies wholly within the borough of Chambersburg. It was originally a part of a turnpike extending from Harrisburg to the Diamond or Public Square in Chambersburg, which, by authority of a charter granted in 1814, the Harrisburg, Carlisle and Chambersburg Turnpike Company constructed and maintained.

In 1904, pursuant to permission given, and in the mode prescribed, in the special act of February 28, 1861, to this and certain other turnpike companies, “to abandon, surrender and relinquish to the public so much of their respective roads as lie within the limits of Chambersburg,” this company abandoned, surrendered and relinquished that portion of its turnpike situate within the limits of the borough. The managers of the turnpike company evidently intended, so far as it was within their power to do so, to transfer the complete control of the street to the borough, for it appears that their resolution was, not only to “abandon, surrender and relinquish to the public,” but to “release to the borough of Chambersburg” so much of its turnpike road as lay within the limits of the borough. It is not clear that the addition of the words “release to the borough,” which do not appear in the statute, gave the action of the company a different effect, so far as the question before us is concerned, from what it would have had if they had been omitted, but it is proper to allude to the fact as part of the history of the case.

In 1905, by ordinances and proceedings, the regularity of which is not questioned, the borough ordered the vacation and closing of a section of that part of the highway — this section being about 1,000 feet in length and ending at the then borough line. Beyond that point, the highway continued to be maintained by the turnpike company' as a turnpike upon which tolls are collected. The obstructions com.plained of in the indictment were erected by the defendant (a corporation owning most of the abutting land) within the lines of the portion of the turnpike abandoned by the company and vacated and closed to public use by the borough ordinances above referred to.

One of the important facts admitted on the trial was, that for many years prior to the passage of these ordinances the part of the turnpike road within the borough was known as Philadelphia avenue, and the authorities of the borough “ exercised control over it by from time to time changing the grades of certain portions thereof and performing the work incident to such change of grade, and by requiring property owners along the same to make and repair pavements, curbs and gutters, and generally exercising such control over it as they did over other streets of the borough, including the granting thereon of franchises for public service corporations.”

We need not recite the facts relative to the highways provided by the borough to take the place of that vacated; for as we view the case, and as it is presented by counsel, the question is, whether the enactment of the ordinances was beyond the corporate power of a borough subject to the general borough law, not whether the ordinances are void for unreasonableness or abuse of discretion.

That a turnpike laid out and maintained by a corporation chartered for the purpose is a public highway, and that upon the legal abandonment of a portion of it by the corporation, such portion continues to be a public highway, are propositions about which there can be no dispute. But it does not aid much in the disposition of the question before us to show that Philadelphia avenue continued to be a public highway after the abandonment of that portion of its turnpike by the company, for that could be said of any street laid out by the corporate authorities of a borough and beginning and ending within its limits. Nor can it be said that a borough has no authority to vacate a highway wholly within its limits, which was not laid out by the corporate authorities of the borough but was originally laid out and afterwards legally abandoned by a turnpike company. This, we think, was impliedly decided in Commonwealth’s App., 9 Atl. Repr. 524. The syllabus of the case is as follows: “The town council of a borough has the right to open a street laid down in the general plan of the town, even if, in doing so, it will necessarily and unavoidably close up and obstruct another highway not laid down in the town plan, but which has become a highway by having been the bed of an artificial road belonging to a turnpike company, which, on being abandoned by the company, became a public road under the general laws of Pennsylvania.” That this was the point intended to be decided in that case by the learned judge below is apparent from his statement of the question involved; and it is difficult to see how the decision could be made that the borough could actually obstruct and close up a public road which it had no power to vacate by an ordinance duly enacted. Indeed, judging from the reported abstract of the argument of counsel for the commonwealth, their contention was that the power must be exercised by ordinance to vacate, not that the borough did not have the power. So far as the report of the case shows, neither counsel nor the courts intimated that the mere fact that the street was originally laid out and opened and after-wards legally abandoned by a turnpike company would prevent the application of the law as laid down in Osage Street, 90 Pa. 114. But, treating the question as a new one, is the fact last alluded to conclusive against the power of the borough? Section 2 of the Act of April 3, 1851, P. L. 320, enumerating tlie powers of the corporate officers of a borough, does not in so many words declare that they shall have power to vacate, but in clause II the power is expressly given “to survey, lay out, enact, and ordain such roads, streets, lanes, alleys, courts and common sewers as they may deem necessary," and in clause IV, they are empowered “to regulate the roads, streets, lanes, alleys, courts .... and the .... grades, widths, slopes, and forms thereof; and," the clause concludes, “they shall have all other needful jurisdiction over the same." Construing the latter provision in connection with the provisions of sec. 27 fixing the time when and the terms and forms on and in which the court shall have the right to intervene, the court reached the conclusion in the case last cited, that the quarter sessions had not and the borough had original jurisdiction in the vacation of the street then under consideration. Justice Warren J. Woodward, speaking for the court said: “The words 'to vacate’ in the second clause of the proviso are to be read in connection with the rest of the third clause of the 27th section, as well as in connection with the second and fourth clauses of the 2d section. The vacation of a street was as much in contemplation as the laying out and opening of. a street when the legislature made provision of means by which the proceedings of the council should be revised. The words cannot be relegated to the act of 1846, and read into that, in order to give them efficiency, nor can they be stricken out. As they stand, they are aids to indicate the scope and purpose of the Act of 1851 in an unmistakable way." It is true that in that case the street had been dedicated to public use by the owner of the land, and adopted by the borough, but the decision was not put on that ground, and the reasoning of the opinion is entirely inconsistent with the supposition that the power of a borough to vacate is confined to dedicated streets, or to streets originally laid out by the borough. Nor would such supposition be consistent with the general principles to be had in view in the construction of statutes relating to city and borough streets. Upon this subject the court said: “The adjustment of a city or borough plan requires scientific knowledge, a pervading system thoroughly understood by official agents, and familiarity with diversified and minute details. The vacation of a single street could be at a point so vital as to derange the graduation, drainage and sewerage of an entire borough. Legislation should be very clear indeed to require that the health, convenience and comfort of a whole community should be put to the hazard of the action of six gentlemen casually selected from country townships, adjacent to a town, to deal with an isolated detail of a system which they could touch only to injure and perhaps destroy.” This is in line with the general doctrine enunciated in Norwegian Street, 81 Pa. 349, that the general legislative intent has been to secure uniformity of plan and adequate municipal supervision in respect to borough highways, and to that end to subject them to the control of the municipal authorities as exclusively as is consistent with the duty of affording protection to interests of individual citizens. But it is well settled by authoritative decisions, that there are highways over which boroughs do not have exclusive jurisdiction, even as to parts within their limits. In Somerset and Stoystown Road, 74 Pa. 61, the proceeding was in the quarter sessions to widen a portion of a road laid out by public authority from Somerset borough to the borough of Stoystown. The portion proposed to be widened was partly in the borough of Somerset and partly in the adjoining township. Objection was made that the portion within the borough was subject exclusively to the control and regulation of the borough authorities. But it was held that the quarter sessions had jurisdiction. We call particular attention to some of the considerations mentioned in the opinion of Sharswood, J., sustaining the conclusion, and remark that they do not apply here, for it is clear that the court of quarter sessions had no jurisdiction to vacate the part of the highway outside the 'limits of the borough of Chambersburg.

Palo Alto Road, 160 Pa. 104, is a similar case, except that the proceeding was to vacate, and it was held that the quarter sessions had jurisdiction. The same doctrine is held in later cases of a similar character. Speaking in the former case of the provisions of the'acts of 1851 and 1856, Shakswood, J., said: “But by streets and alleys ‘therein’ — that is, within the borough limits — must necessarily be meant such as begin and end therein, and not such public roads as are or may be opened through the borough, of which a part only is within the borough limits. As to such roads there is nothing in either of these acts to repeal the general law or repugnant to it.” It is strongly urged that this construction is conclusive against the power of the borough to vacate Pennsylvania avenue. This involves the assumption that it does not end in the borough; but we are not convinced of the correctness of that assumption. The question whether in a legal sense the street began and ended in the borough, or, conversely, whether the highway with which it connected began outside and ended within the borough, is to be determined as of the time when the ordinances were adopted. At that time there had been a legal severance of Pennsylvania avenue from the turnpike. It is true, both were highways and the terminus of each at the borough line was coincident with that of the other, but this would be equally true, if they had been laid out at different times and under different proceedings. None of the cases cited decide and the reasoning of the cases does not lead to the conclusion, that the mere fact of coincidence of termini is sufficient to give the quarter sessions exclusive jurisdiction to vacate a borough street so situated. On the contrary, the doctrine of Osage street sustains the conclusion that the corporate officers of the borough have power to vacate it.

We have given due consideration to the able and exhaustive opinion of the learned trial judge and to the able argument of the commonwealth’s counsel, but we are, nevertheless, constrained to hold that the defendant’s point for binding direction should have been affirmed.

The judgment is reversed and the defendant is discharged.


author: Per Curiam,

text:
    Reighard v. Bedford County, Appellant.

      Road law — State roads — Statutes—Repeal—Acts of May 1, 1905, sec. 16, P. L. 318 and June 8, 1907, P. L. 505.

    The State Road Act of June 8, 1907, P. L. 505, amending sec. 16 of the Act of May 1, 1905, P. L. 318, repealed the earlier act in so far as it related to the appointment of viewers by the quarter sessions to assess damages for a physical change of grade not made prior to the passage of the act of 1907.
    Argued Oct. 28, 1909.
    Appeal, No. 236, Oct. T., 1908, by defendant, from order of Q. S. Bedford Co., overruling exceptions to report of viewers in case of F. O. Reighard v. Bedford County.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Exceptions to report of viewers. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court overruling exceptions to report of viewers.

      John N. Minnich, with him E. M. Pennell, for appellant.
    No printed brief for appellee.
    April 18, 1910:
   Per Curiam,

The question involved in this appeal is precisely the same as that raised and decided in Jamison v. Cumberland County, 39 Pa. Superior Ct. 335. It'is due to the learned judge of the quarter sessions to say that his decision in the present case was made before the decision in the case cited. The point there decided was that the State Road Act of June 8, 1907, P. L. 505, amending sec. 16 of the 'Act of May 1,1905, P. L. 318, repealed the earlier act in so far as it related to the appointment of viewers by the quarter sessions to assess damages for a physical change of grade, not made prior to the passage of the act of 1907. As pointed out in the opinion, the decision related only to the question of remedy. After careful reconsideration of the question we see no reason to change the conclusion there reached.

The order is reversed and all the proceedings are set aside at the costs of the appellee.


text:
    Herrman, Appellant, v. Bredo.

      Evidence — Parol evidence — Fraud—Written instrument.

    It is not essential to the admission of parol evidence to affect a written instrument that fraud was actually intended, but is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or to use it in violation of the accompanying agreement.
    Argued Oct. 22, 1909.
    Appeal, No. 219, Oct, T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 771, discharging rule for judgment for want of a sufficient affidavit of' defense, in case of Sig. M. Herrman, executor of the estate of William H. Green, deceased, v. Arthur C. Bredo.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Assumpsit on a promissory note for $500.
    The averments of the affidavit of defense are stated in the opinion of the Superior Court.

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

      Roy M. Livingston, for appellant,
    cited: Butler v. Keller, 19 Pa. Superior Ct. 472; Martin v. Berens, 67 Pa. 459; Ziegler v. McFarland, 147 Pa. 607; Clarke v. Allen, 132 Pa. 40; Coal & Iron Co. v. Willing, 180 Pa. 165.

      A. L. Wanamaker, for appellee,
    cited: Brown v. Morange, 108 Pa. 69; Walker v. France, 112 Pa. 203; Cullimans v. Lindsay, 114 Pa. 166; Close v. Zell, 141 Pa. 390; Musser v. Stauffer, 178 Pa. 99; Coal & Iron Co. v. Willing, 180 Pa. 165; Loucks v. Lightner, 11 Pa. Superior Ct. 499; Hacker v. Oil Refining Co., 73 Pa. 93.
    April 18, 1910:
   Opinion by

Rice, P. J.,

It is alleged in the affidavit of defense that the defendant entered into an oral agreement with a representative of a syndicate of five persons, one of whom was the plaintiff, to sell his entire holdings of the stock of a certain company for $5,000, and that the plaintiff agreed to purchase thirty shares, his proportion, for $1,000, which was to be paid in this way: The defendant was to make and deliver to the plaintiff his promissory note for $500 payable to the plaintiff’s order, and attach thereto, as collateral, certificates for twenty-four shares of the stock of the company; and the plaintiff was to negotiate the note, pay over the proceeds to the defendant as part payment of the purchase price of. the stock, pay the note at maturity and return it to the defendant, and retain the twenty-four shares of stock and pay the balance of the $1,000 in cash, whereupon he was to receive a certificate for six additional shares of stock, making thirty in all. Upon the faith of and in performance of this agreement, it is substantially alleged in the affidavit of defense, the note in suit with the certificate for twenty-four shares of stock was delivered to the plaintiff. It is further alleged that the plaintiff has at all times exercised the rights of an absolute owner of the twenty-four shares of stock attached to the note, having had it put in his name on the books of the company and voting thereon at all meetings of the corporation. If the facts be as stated in the affidavit of defense, and for present purposes we are bound to presume them to be so, and if notwithstanding them the plaintiff is allowed to recover in this action, he will have received from the defendant twenty-four shares of the latter’s stock and $500 in addition, for which the defendant has received no consideration whatever. But apart from the question of consideration, it was said in Parke v. Chadwick, 8 W. & S. 96, “that it is as much a fraud to obtain a paper for one purpose, and use it for a different and unfair purpose, as to obtain it by fraudulent statements.” This was repeated in Rearich v. Swinehart, 11 Pa. 233, in connection with the declaration that it is not essential to the admission of parol evidence that fraud was actually intended but it is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or to use it in violation of the accompanying agreement. The doctrine of these cases has been recognized in many later cases, notably in Phillips v. Meily, 106 Pa. 536, where one of the instances in which parol evidence is admissible to affect a writing is stated as follows: “ Where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.” As the case is presented it seems to be fully within this principle.

The appeal is dismissed at the costs of the appellant without prejudice, etc.


author: Morrision, J.,

text:
    Gump v. McDaniel, Appellant.

      Contract — Sale—Delivery of possession — Leased chattels.

    A sale of a chattel in the hands of a lessee is good against an execution creditor, if the lessor does not retake possession.
    Where an owner of a traction engine leases it to another and while it is under lease and in a broken down and dismantled condition sells it to a third person at what appeared to be a fair price, and the purchaser takes steps to secure possession of the engine, but before he succeeds the engine is levied upon by an execution creditor of the vendor, the question as to whether there was fraud in fact is one for the jury, and if the jury finds in favor of the purchaser, the court commits no error on a motion for judgment non obstante veredicto in finding that there was no legal fraud and in refusing to set aside the verdict.

      Argued Oct. 25, 1909.
    Appeal, No. 225, Oct. T., 1908, by defendant, from judgment of C. P. Bedford Co., Sept. T., 1908, No. 137, on verdict for plaintiff non obstante veredicto in case of H. Frank Gump et al., trading as H. Frank Gump & Sons, v. W. W. McDaniel.
    Before Rige, P. J., Henderson, Morrison, Orlad'y, Head, Beaver and Porter, JJ.
    Affirmed.
    Sheriff’s interpleader to determine the ownership of a traction engine. Before Shull, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following points:
    4. That the verdict of the jury must be for Gump & Sons, the plaintiff, unless there was actual fraud or fraud in fact in the contract of sale, but fraud in fact must be clearly established by the defendant from evidence in the case. It cannot be presumed. Answer: This point is affirmed. [11]
    5. That to establish fraud in fact the defendant must show by clear and satisfactory evidence that there was collusion between Gump & Sons and Clark with intent to defraud the creditors of Clark, and if he fails in this proof the verdict must be for the plaintiff. Answer: This point is affirmed. [12]
    7. That Clark' had a perfect right to sell this engine to Gump & Sons, or to any other person, and such sale would be good in law, unless it were shown on the trial that it was not a bona fide sale or that it was a fraudulent arrangement made with intent to defraud the cerditors of Clark. Answer: This point is affirmed. [13]
    Defendant presented this point:
    5. That there is no evidence in this case, sufficient to submit to the jury, that the plaintiffs took possession of the engine in dispute at the time of the sale; nor is there any evidence -to show that the parties did all in their power to make the facts of sale public and to give notice to all parties in interest. Answer: This point is refused.
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned, amongst others, were (1) in reserving fifth point submitted by defendant and overruling motion for judgment non obstante veredicto; (11-13) above instructions, quoting them.

      Frank E. Colvin, for appellant.
    — If the' purchaser wishes to make himself secure against the creditors of his vendor, he must take the property into his exclusive possession, so that the change of possession may be visible, and by this means, become known to all whom it may.concern: Streeper v. Eckart, 2 Whart. 302; McKibbin v. Martin, 64 Pa. 352; Billingsley v. White, 59 Pa. 464; Clow v. Woods, 5 S. & R. 275; Barlow v. Fox, 203 Pa. 114; White v. Gunn, 205 Pa. 229; Worman v. Kramer, 73 Pa. 378; Stephens v. Gifford, 137 Pa. 219.

      John H. Jordan, for appellee.
    — The facts were for the jury: McKibbin v. Martin, 64 Pa. 352; Garretson v. Hackenberg, 144 Pa. 107; Caulfield v. Van Brunt, 173 Pa. 428; Reyer v. Rice, 36 Pa. Superior Ct. 178.
    Change of possession by actual delivery was not necessary: Linton v. Butz, 7 Pa. 89; Worman v. Kramer, 73 Pa. 378; Woods v. Hull, 81* Pa. 451; Caulfield v. VanBrunt, 173 Pa. 428.
    April 18, 1910:
   Opinion by

Morrision, J.,

In the winter of 1903 and 1904, W. E. Clark purchased a secondhand traction engine and took possession of it. In March, 1907, he sold and delivered it to Hockenberry and Decker for $800 and they kept it for about six months, when they resold it to Clark for $600. It was then on the premises of George Weicht, about five miles from Clark’s'home, and he was to get the engine at Weicht’s. But in fact he did not remove the engine from that place. In November or December, 1907, the engine being out of repair, Clark leased it to Wallace & Garlick; they were to put it in repair and to have the use of it at $1.00 per day for each day that they actually used it till they were fully repaid for the expense of the repairs which they should put upon the engine. These lessees took the engine into their possession and used it till January, 1908, when in moving it from one farm to another, to continue their work, the master wheel broke, entirely disabling the engine. The lessees pulled it to the side of the road, on the farm of G. C. Probst, about two miles from Clark’s home. They notified Clark to have the engine repaired which he agreed to do, but in fact this was never done by him. At this time there was money yet coming to Wallace & Garlick for repairing the engine, and this was never paid to them. There is evidence from which the jury could find that they did not surrender their lease of the engine. Clark never had the actual possession of the engine from the time he sold it to Hockenberry and Decker in March, 1907. On March 10,1908, Clark being financially embarrassed, sold the engine to Gump & Sons, appellees, for the sum of $600 to be paid, $450 to a bank holding Clark’s notes for that amount, indorsed by appellees, and to pay a book account of theirs against Clark, and the balance of the $600 was to be paid to Clark in money. Appellees promptly notified the bank of their purchase of the engine and paid the notes as agreed. They also promptly authorized W. B. Karns to look at the engine and repair it and bring it to Everett, but Karns did not go to the engine until March 25,1908, and it was then under levy by the sheriff. On March 17, 1908, appellant secured judgment against Clark and issued an execution thereon to the sheriff and on the same day the sheriff levied on all of Clark’s personal property, including the engine. The property so levied was all sold by the sheriff, except the engine, and this issue was framed under the interpleader act to try the title to the engine. The trial resulted in a verdict for the appellees and the court having refused a new trial and judgment non obstante veredicto, and entered judgment on the verdict for the appellees, the appellant took this appeal.

We find in the record fourteen assignments of error, but it will not be necessary to discuss them seriatim. When it is recalled that the engine had been out of the possession of Clark since March, 1907, and that there was ample evidence at the trial from which the jury could find that the sale by Clark to appellees on March 10, 1908, was bona fide and for a fair and valuable consideration, we are not able to agree with the learned counsel for the appellant that the court erred in not holding that the sale of the engine was fraudulent in law, because the appellees did not immediately remove it from the Probst farm and retain the actual possession of it thereafter. If this engine had been in the possession of Clark when the sale of March 10, 1908, was made, there would be much force in the contention that failing to take possession of it by the appellees would amount to a fraud in law as to the execution creditors of Clark, but we think the authorities in Pennsylvania make a marked distinction in a case where the personal property sold was at the time in the possession of lessees.

In Linton v. Butz, 7 Pa. 89, it is decided as stated in the syllabus: “A sale of personal property in the hands of a bailee is good against an execution creditor, though there be no actual delivery, if the vendor does not retake possession. And so if the vendee takes possession and leaves the property with a former bailee for a special purpose.” That case is cited and followed in Stephens v. Gifford, 137 Pa. 219. It is again cited and followed in Caulfield v. Van Brunt, 173 Pa. 428.

In Worman v. Kramer, 73 Pa. 378, it is held as stated in the syllabus: “A sale of goods in the hands of a bailee is good against an execution creditor, if the vendor do not retake possession.” To the same effect is Woods v. Hull, 81* Pa. 451. We think these authorities, as well as others that might be cited, effectually dispose of the appellant’s contention that-the court ought to have pronounced the sale of the engine fraudulent in law.

Now let us see what the learned court did submit to the jury. We think he very fairly and adequately submitted to the jury the following questions: Was there fraud in fact? Was the sale bona fide? Was the price a fair one? Was such possession of the property taken and such acts of ownership exercised by Gump & Sons as could reasonably be expected, considering the location and character of the property, its position, condition and circumstances attending the sale? Had the vendor leased the engine to Wallace & Garlick? Did the lessees surrender the engine to the lessor, or was the possession of the engine in the lessees at the time cf the sale? The court fully and carefully instructed the jury in regard to these questions of fact and the jury was instructed that if the sale was not bona fide for a fair price, and if Gump & Sons did not take such possession and exercise such acts of ownership as could be reasonably expected, considering the character and condition of the property, and the lease claimed by Wallace & Garlick, then their verdict should be for the defendant. The verdict indicates that they found every question of fact in favor of the appellees. We think the following authorities fully sustain the court below in submitting the case to the jury to ascertain whether or not there was fraud in fact: McKibbin v. Martin, 64 Pa. 352; Garretson v. Hackenberg, 144 Pa. 107; Caulfield v. Van Brunt, 173 Pa. 428; Reyer v. Rice, 36 Pa. Superior Ct. 178.

At first blush we had some question about the correctness of the learned court’s unqualified affirmance of the fourth and fifth points (eleventh and twelfth assignments of error). The affirmance of these points placed the burden on the defendant of proving actual fraud. If in presenting the plaintiffs’ case, evidence had been produced from which the jury could have found actual fraud, then we would feel bound to sustain the eleventh and twelfth assignments. But we have reached the conclusion that the plaintiffs’ evidence tends strongly to sustain their title and if the jury could find fraud in fact, it must come from the defendant’s showing and theory of the evidence. With this view of the case we are not prepared to hold that the court erred in affirming the fourth and fifth points.

Considering the sale of the engine in the present case to the appellees in the light of all the circumstances disclosed by the evidence, it surely bore the appearance of bona fide sale and in such a case, “ Fraud is not to be presumed without satisfactory proof of its existence; which can scarcely be affirmed where a proper motive exists, which might as readily have been the operating motive as one that was fraudulent.” Agnew, J., in Bear’s Est., 60 Pa. 430. See also Lasher v. Medical Press Co., Ltd., 203 Pa. 313, and cases therein cited.

While fraud is not to be presumed, yet it can be inferred from facts clearly proved leading to that conclusion: Jackson v. Summerville, 13 Pa. 359; Abbey v. Dewey, 25 Pa. 413; Bentz v. Rockey, 69 Pa. 71. In Werner v. Zierfuss, 162 Pa. 360, Mr. Justice Mitchell, speaking for the Supreme Court, said: “That where there is an actual debt, the jury cannot be permitted to infer a fraudulent intent from the mere fact of payment or preference given to it .... 'the judge said in his charge that little room is left to attribute fraudulent motives when a debt is actually due from the vendor nearly equal to the value of the property. He should have said there is no room at all. We are not permitted to assign a bad motive to an act which is not wrong in itself or in its necessary consequences .... a jury is not at liberty to deduce fraud from that which the law pronounces honest.’ See also Bear’s Est., 60 Pa. 430-436.”

The doctrine of the latter case has been followed in a large number of cases both in the Supreme and Superior Courts. In Com. v. Erie & Pittsburg, R. R. Co., 74 Pa. 94, Agnew, J., said in delivering the opinion of the Supreme Court: “A corporation, as well as an individual, is entitled to the ordinary presumption of rightful action until the contrary is shown.”

It is a well-settled rule of law that there is a presumption against fraud, coven, vice and immorality. In Winlack v. Geist and Thomas, 107 Pa. 297, Mr. Justice Green, for the Supreme Court, said: “On the contrary, we think with the learned court below, that when a man does an act, the presumption, in the absence of evidence otherwise, is that he acted rightfully and not wrongfully. This does the defendant no harm. He is at perfect liberty to disprove the presumption and show by any sufficient testimony that it does not apply in the given case.” See also Mead v. Conroe, 113 Pa. 220; Whitman v. O’Brien, 29 Pa. Superior Ct. 208, and authorities therein cited. In the light of these authorities and many others we are of the opinion that the court did not err in affirming the fourth and fifth points.

We also think that the court was warranted, under the evidence, in affirming the plaintiff’s seventh point, thirteenth assignment. We see no merit in the fourteenth assignment that the charge of the court, with the answers to the points, as a whole is contradictory, conflicting, uncertain, misleading and is unfair to the defendant. On the contrary, we think the charge, taken as a whole, is adequate and fair.

The appellant complains of the action of the court in reserving decision on the points asking for a binding instruction that fraud in law had been established. Also in refusing judgment for the defendant non obstante veredicto on the same ground. We are unable to see how reserving the decision, as to legal fraud, injured the appellant. We have found that legal fraud had not been shown and if the court had so decided at the trial, by refusing appellant’s points on that question, it doubtless would have lessened the chances of obtaining a verdict that there was fraud in fact. The jury had nothing to do with the question of fraud in law, and it was entirely proper for the court to reserve that question till after the verdict came in as to fraud in fact. If the jury had found fraud in fact, as they might have done under the charge, the court would have been relieved from deciding the question of fraud in law, because if the sale was in fact fraudulent, the appellees’ title was bad and the verdict and judgment must have gone in favor of the appellant. The whole question of fraud in law necessarily came before the court on the motion for judgment non obstante veredicto, and the refusal of such judgment and directing judgment on the verdict (the jury having found no fraud in fact), was a legal and orderly disposition of the reserved questions.

Upon the facts in this case we think it would have been error for the court to have directed a verdict in favor of the appellant on the ground of legal fraud. In our opinion, the case was well tried, and the assignments of error are all overruled, and the judgment is affirmed.