text:
    Philadelphia, Appellant, v. Philadelphia & Reading Railroad Company.

      Municipal liens — Water pipe — Railroads—Right of way — Real estate— Act of June 4,1901, P. L. 364.
    The roadbed of a public railroad is not “real estate ” within the meaning of the Act of June 4,1901, P. L. 364, and is not subject to assessment for local taxation or municipal claims.
    Argued Dec. 18, 1908.
    Appeal, No. 204, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3,995, M. L. D., making absolute rule to strike off liens in case of City of Philadelphia v. Philadelphia & Reading Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off municipal liens for water pipe assessed against defendant’s right of way.

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

      Francis M. McAdams, with him James Alcorn and J. Howard Gendell, for appellant.
    The act of 1901, authorized the liens in suit: Penna. R. R. Co. v. Pittsburg, 104 Pa. 522.
    Unless this act does apply as to property essential to a quasi-public corporation, then sec. 31 is absolutely useless and could have no meaning whatever, for if the property essential to one quasi-public corporation, or one class of quasi-public corporations, is exempt under the act, then, of course, the property of all other quasi-public corporations is also exempt, just as they have been from taxes proper: Lehigh Coal and Navigation Co. v. Northampton County, 8 W. & S. 334; N. Y. & E. R. Co. v. Sabin, 26 Pa. 242; West Chester Gas Co. v. Chester County, 30 Pa. 232; Coatesville Gas Co. v. Chester County, 97 Pa. 476; Allegheny County v. Diamond Market, 123 Pa. 164; Mt. Pleasant Boro. v. R. R. Co., 138 Pa. 365; Schuylkill County v. Citizens’ Gas Co., 148 Pa. 162; Phila. v. R. R. Co., 1 Pa. Superior Ct. 236.
    February 26, 1909:

      John G. Lamb, for appellee.
   Opinion by

Porter, J.,

The city of Philadelphia laid a water pipe in Clarissa street and filed a municipal claim therefor against a part of the right of way of the defendant company abutting on the street. The claim filed expressly stated that the land was a portion of the right of way of the defendant. The sole question presented by the record is whether the city can maintain a municipal claim for a local improvement against the right of way of a railroad company which abuts upon the street. It is conceded that the claim could not have been maintained prior to the Act of June 4, 1901, P. L. 364, but it is contended on behalf of the city that the lien should be sustained under the provisions of that statute.

The fifth section of the Act of June 4, 1901, P. L. 364, after exempting certain classes of property, contains this provision: “All real estate, by whomsoever owned and for whatsoever purpose used, shall be subject to all tax claims and municipal claims herein provided for.” The right of way of a railroad company is not named among the classes of property expressly exempted, and it is asserted that it must for this reason be held liable to assessment. Prior to the enactment of this statute it had been held that the roadbed or other property of a railroad company essential to the exercise of its franchise was not subject to taxation or municipal charges, while property which was held for mere convenience in the conduct of its business was subject to taxation for both purposes. We do not^deem it necessary to review the reasons given Jor the decisionsin Junction Railroad Company v. City of Philadelphia, 88 Pa. 424, and the earlier cases. When the statute in question becamf a law it had been settled by judicial construction that the words “real estate” in a tax act did not include land essential to the exercise by a public corporation of its franchises, without which its public duties could not be performed: City of Erie v. Piece of Land, 175 Pa. 523; City of Philadelphia v. Philadelphia & Reading Railroad Company, 177 Pa. 292; Philadelphia v. Traction Company, 208 Pa. 157. That this was the settled policy of the law is clearly demonstrated, by Mr. Justice Fell, in the case last cited, who there reviews the authorities which had established the rule. The act of 1901 was written in the light of these decisions, and the words “real estate” when used therein must be held to have the meaning which had been given to them by the Supreme Court in construing previous statutes authorizing taxation of the same character, in the absence of a clearly expressed legislative intention that they should have a different meaning: Pennsylvania Railroad Company v. Pittsburg, 221 Pa. 90; Conoy Township v. York Haven Electric Power Plant Company, 222 Pa. 319. The roadbed of a public railroad is not “real estate” within the meaning of the act of 1901 and is not subject tó assessment for local taxation and municipal claims.

The judgment is affirmed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Philadelphia, Appellant, v. Philadelphia & Reading Railroad Company.
    February 26, 1909:
    Argued Dec. 18, 1908.
    Appeal, No. 205, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3,997, M. L. D., making absolute rule to strike off liens in case of City of Philadelphia v. Philadelphia & Reading Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Porter, J.,

This record presents the same question considered in the case No. 204, October Term, 1908, between the same parties, ante, p. 529, in which an opinion has this day been filed, and for the reasons there stated the judgment is affirmed.


author: Morrison, J.,

text:
    P. W. Ziegler Company, Appellant, v. Commercial Union Assurance Company.

      Insurance — Fire insurance — Double insurance — Pro rating.

    1. Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and same interest. If there be double insurance, either simultaneously or by successive policies in which priority of insurance is not provided for, all are insurers, and liable pro rata. All the policies are considered as making but one policy, and, therefore, any one insurer who pays more than his portion, may claim a contribution from others who are liable.
    2. Where the insured has a policy covering several parcels of property, and also has specific insurance covering one of said parcels, the latter insurance must be entirely exhausted before the other policies can be called upon for contribution to the loss. Such character of policies do not pro rate in anyway with each other. This is because the two classes of policies are not on the same subject risk, and interest.
    Argued Dec. 15, 1908.
    Appeal, No. 180, Oct. T., 1908, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1908, No. 540, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The P. W. Ziegler Co. v. The Commercial Union Assurance Company of London.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance.
    The opinion of the Superior Court states the facts of the case. Plaintiff appealed.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense in the sum of $800.55 instead of $956.49.

      C. Wilfred Conrad, for appellant.
    The policy is to be construed in such a way as to pay the loss: Sloat v. Ins. Co., 49 Pa. 14; Ins. Co. v. Kepler, 106 Pa. 28; Meigs v. Ins. Co., 205 Pa. 378; Schmaelze v. Fire Ins. Co., 75 Conn. 397 (53 Atl. Repr. 863); Grandin v. Ins. Co., 107 Pa. 26; McKeesport Machine Co. v. Ins. Co., 173 Pa. 53; Western Ins. Co. v. Cropper, 32 Pa. 351; Merrick v. Ins. Co., 54 Pa. 277; Joyce on Ins., sec. 220.
    February 26, 1909:
    Under the coinsurance clause it was early decided that where one policy covered one item of property and another policy covered the same items and others, that the first policy could not claim the right to pro rate the loss with the second policy because the result would be obviously unjust to the assured and would not give him full indemnity: Sloat v. Insurance Co., 49 Pa. 14; Clark v. Assurance Co., 146 Pa. 561; Herr v. Greenwich Ins. Co., 20 Pa. Superior Ct. 169; Meigs v. Ins. Co., 205 Pa. 378; Schmaelzle v. Fire Ins. Co., 75 Conn. 397 (53 Atl. Repr. 863).

      Frank R. Shattuck, for appellee.
    The standard authority in the state of Pennsylvania regarding apportionments is Sloat v. Royal Insurance Co., 49 Pa. 14, decided in 1865. See also Clarke v. Western Assurance Co., 146 Pa. 561; Meigs v. Ins. Co. of North America, 205 Pa. 378; Yanko v. Standard Fire Ins. Co., 31 Pa. Superior Ct. 1.
   Opinion by

Morrison, J.,

The defendant company, with others, issued their policies to the plaintiff in the amount of $4,750, covering stock contained in the premises 221-227 Locust street, Philadelphia. Certain other fire insurance companies issued their policies to the plaintiff in the amount of $5,000, covering the stock contained in one of said buildings only, 227 Locust street. The sound value of the stock contained in the buildings 221 and 225 Locust street was $4,500, and the loss thereon $4,154.97. The sound value of the stock in the one building at 227 Locust street was $5,251.75, and the loss thereon, $3,651.76. The total sound value, therefore, of all of the property covered by the policy of the defendant company was $9,751.75. All of the policies contained what is commonly known as the “reduced rate average clause,” the same being attached thereto, which provides as follows: “In consideration of the reduced rate at which this policy is written, it is expressly stipulated and made a condition of this contract, that this company shall be liable for no greater proportion of any loss than the amount thereby insured bears to 100 per cent, of the actual cash value of the property described herein at the time when such loss shall happen,” etc. This we conceive is the important portion of the clause bearing upon the questions involved in this appeal.

The plaintiff brought suit on one of the policies covering the property in the premises 221-227 Locust street and claimed the right to recover $956.49, with interest. The defendant filed an affidavit of defense contending that it was only liable, under its policy, for $800.55, and admitted that sum to be due. The plaintiff entered a rule for judgment for want of a sufficient affidavit of defense and the learned court below made the rule absolute for $800.55, and the plaintiff appealed.

While the learned court below does not favor us with an opinion it is very evident that he considered the question involved to be ruled by Sloat v. Royal Ins. Co., 49 Pa. 14, decided in 1865.

That case has been recognized as the law in Pennsylvania down at least until Meigs v. Ins. Co. of North America, 205 Pa. 378, where its doctrine is followed and approved. In the Sloat case the principle, which we think controls the present case, is stated by Read, J., as follows: “Double insurance, says Arnould, takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest. If there be double insurance, either simultaneously or by successive policies, in which priority of insurance is not provided for, all are insurers, and liable pro rata. All the policies are considered as making out one policy, and, therefore, any one insurer who pays more than his proportion, may claim a contribution from others who are liable. Fire policies usually contain express and exact provisions on this subject.” It was there held that where one policy of insurance covers the building of the party insured and a subsequent policy in another company covers the building, machinery, tools, etc., it was not a case of a double insurance. In that case there was a $2,000 policy on the building and a $2,500 policy on the building, machinery, tools, etc. In a. suit on the former policy the plaintiff was allowed to recover the entire amount of the policy and the defendant was not permitted to pro rate with the $2,500 policy. For an interesting discussion of the question thus raised, see opinion of Justice Mestrezat in Meigs v. Ins. Co. of North America, 205 Pa. 378.

The learned counsel for appellee states, we think correctly, the rule in that case as it should be applied in the present case under the “reduced rate average clause,” to wit: “Where the assured has a policy covering several’parcels of property, and also has specific insurance covering one of said parcels, the latter insurance must be entirely exhausted before the other policies can be called upon for a contribution to the loss. Such character of policies do not pro rate in any way with each other.” This because the two classes of policies are not on the same subject, risk and interest. One class being on the property in 221-227 and the other upon 227 alone, Locust street. If the liability of the present defendant is controlled by the doctrine of Sloat v. The Royal Ins. Co., 49 Pa. 14, then it is conceded, as we understand, that the learned court below granted judgment for the correct amount. This being so, it is unnecessary for us to state the method pursued in arriving at that amount.

The learned counsel for appellant has furnished us with an elaborate and ingenious argument by which he reaches the conclusion that the judgment granted by the court below is $155.94, and some interest, too small. A somewhat patient examination of his argument and authorities fails to convince us of the soundness of his conclusion. He practically asks us to overrule or modify the rule of law as to the question here involved which has been followed by our Supreme Court uniformly since the decision of the Sloat case in 1865. We cannot adopt the learned counsel's theory without overruling what we understand to be the settled law of Pennsylvania as declared by our Supreme Court. This we have neither the power nor the disposition to do.

We further cite Clarke v. Assurance Co., 146 Pa. 561, and call attention to the opinion of Mr. Chief Justice Paxson where he discusses at some length the case of Sloat v. Ins. Co., 49 Pa. 14. See also our own case of Yanko v. Standard Fire Ins. Co., 31 Pa. Superior Ct. 1. As we understand the present case, the court below reached a correct conclusion.

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


author: Orlad y, J.,

text:
    Commonwealth v. City Trust, Safe Deposit & Surety Company.

      Attorney at law — Fees—Receivers.
    Where an attorney for some of the creditors of an insolvent corporation files exceptions to the report of auditors on the receiver’s account, and succeeds in reducing by a large amount the fees which the auditors allowed to themselves and the receiver, such attorney is not entitled to any fee out of the fund, although his efforts on behalf of his own clients have enured to the benefit of all of the other creditors.
    Argued Dec. 18, 1908.
    Appeal, No. 56, Oct. T., 1908, by Maurice Bower Saul and Walter Biddle Saul, from order of C. P. No. 5, Phila. Co., June T., 1905, No. 2,040, sustaining exceptions to auditor’s report in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. The City Trust, Safe Deposit and Surety Company of Philadelphia.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to auditor’s report. .
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in sustaining exceptions to auditor’s report.

      John G. Johnson, for appellants.
    Any attempt to reduce the fees, made subsequent to the confirmation of the report, either in the court of common pleas or the Supreme Court, would have been futile under the decisions: Potter v. Langstrath, 151 Pa. 216.

      February 26, 1909:
    ' Courts of equity have power to charge funds realized from, or preserved by litigation, with the costs and expenses of such litigation, but to authorize the exercise of this power the litigation in which the costs and expenses were incurred must have been in promotion óf the. interests of those eventually found to be entitled to the fund: Schwartz v. Oil Co., 164 Pa. 415; Weed's Est., 163 Pa. 600; Mann v. Wakefield, 11 Pa. Superior Ct. 18.

      John Kent Kane, with him Murdoch Kendrick and Staake & Patton, for appellee.
    The case falls within the ruling of the Supreme Court in the case of Com. v. Order of Solon, 193 Pa. 240, and Harrison’s Est., 221 Pa. 508.
   Opinion by

Orlad y, J.,

As stated by the appellant, the question presented by this appeal is whether a fund in the hands of a receiver for distribution, should be charged with counsel fees for services rendered in saving for distribution to the general creditors, a sum of over $23,000, under the following facts.

The receiver of the City Trust Safe Deposit and Surety Company of Philadelphia, filed a first account showing for distribution $683,000. Auditors were appointed to distribute this fund, • and claims were proven before the auditors, which amounted to $1,464,000. The auditors awarded to the receiver as compensation, the sum of $38,454.15, and to themselves the sum of $20,000.

There were filed by the appellants, who represented a number of creditors, a number of exceptions and to various conclusions of the auditors; among others, the amount allowed by the auditors to the receiver and his counsel, and their allowance to the auditors. The court dismissed all of the exceptions except those relating to the question of charges, and fixed the compensation of the receiver at $25,000, and allowed the auditprs $10,000 for their services. From this decision, an appeal was taken to the Supreme Court, by the present appellants, but was not pressed for argument, and was non-prossed.

When the second account was filed, it was referred to the auditors, and a claim for $1,000 was presented by the present appellants, for professional services rendered by them in affecting a reduction of the fees and charges as claimed by the receiver and the auditors, which claim after hearing, was awarded to them; whereupon, the counsel on behalf of the receiver, except to this award, and these exceptions were sustained by the court of common pleas, which held as follows: The claim now made is, that the exception filed by counsel, on behalf of their clients, prevented the expenditure of a portion of the fund in the hands of the receiver, that might have been paid by him, had the report of the auditors been confirmed by the court. We do not regard the circumstances as warranting the allowance of this fee, and the two exceptions relating to this claim are therefore sustained.

It is contended that under the rules of the court of common pleas of the county of Philadelphia, rule 9, secs. 5, 6 and 7, if no exceptions had been filed to the auditors’ report, it would have been confirmed absolutely, without being passed upon in any manner by the court. This does not necessarily follow. The report under consideration was that of auditors appointed by the court to examine the account and the disbursements of a receiver whose account was especially subject to the supervision of a court of equity, and it is urged that to refuse compensation to an attorney in a case of this character, would be encouraging the all too common practice of depleting funds in the custody of the court for distribution, by excessive charges, by making it financially better for a creditor to accept his or her share of the loss from the excessive fees, rather than to attempt to have them reduced by making the contest. Conceding the press of business that is before the courts, it must still be expected of any court in the review of an auditor’s report, when all the facts are presented in an intelligible form, that it will make a full examination into the question of the reasonableness or fairness of .the fees charged by the court’s appointees, and will require special proof of extraordinary charges.

The question in this case was fairly brought to the attention of the court by the report of the auditors as follows: “The claimants are members of the bar, representing certain creditors who filed exceptions to the report of the auditors, under the first account. There were three sets of exceptions filed by the claimants, covering several findings of the auditors. The fees charged relate only to one set of exceptions, which set of exceptions was prepared by another attorney and this set of exceptions related to the fees charged by the receiver, the attorneys for the receiver and the auditors. The work of counsel consisted of looking over the filing and argument of these exceptions in court. The sum of $23,000 was not created by the claimants, because the receiver had not paid out that sum, or any part of it, and therefore at most, it was only retained for the estate. Under the decisions, there seems to be no question but that the claimants are entitled to a reasonable counsel fee. Three prominent members of the bar, Frank P. Prichard, Esq., Frank it. Shattuck, Esq., and E. O. Michener, Eq., all testify that $1,000 was a reasonable fee. The auditors, therefore, allow the claimants, Morris Bower Saul and Walter Biddle Saul, the sum of $1,000 as a counsel fee.”

The authorities on which the auditors rely were given and the testimony was reported in full, so that the whole question was before the court for review, whether or not a formal exception under the rule of court had been filed to the allowance of these claims. Where an attorney secures a fund, which would otherwise have been lost, it would be both just and equitable that the counsel recovering the fund should receive compensation, but in this case, there was no allegation of malfeasance on the part of the receiver or the auditors, nor was any fund recovered by reason of the services of the appellants. We feel that the case was properly decided in the court below, under authority of Commonwealth v. Order of Solon, 193 Pa. 240, in which case all that could be urged in support of the appellants’ contention is conceded, but in the language of Mr. Justice Dean, “Admit it; but he did only what he was bound to do, under his professional obligation to his own clients; if he had done less, he would have failed in duty to them; in this particular, he owed no duty to other claimants and performed none to them, although incidental benefit may have resulted to them, from performance of a duty to his own clients. This, however, gives him no claim on them for contribution to his compensation,” and as stated by Mr. Justice Potter, in Harrison’s Estate, 221 Pa. 508: “The fund was in the hands of the court, and in no jeopardy except from possible mistake of the court in dealing with it; and in that event, nothing more was required for the correction of the error than the filing and argument of proper exceptions in the court below, and if necessary, following the matter to the appellate court. There is no evidence that anything out of the ordinary routine of legal procedure was required. The appellant was protecting her own interests, and it may be that by means of her efforts, others were benefited also, yet we know of no rule of law that would entitle her to be reimbursed for payment of counsel fees expended by her in order to protect her own interests. The services she rendered to the common interest were voluntary, and however beneficial they may have been, no legal charge for them can be sustained, in the absence of a contract of employment, either supplying money, or superimposed as a matter of law and equity upon the facts.”

The compensation to which the receiver and auditors were entitled, is definitely fixed by well-established rules, but as officers, or mere executive hands of a court in equity, it was their duty to protect and preserve the fund for the benefit of persons ultimately entitled to the estate, over which the court has found it necessary to extend its care; they were subject in all things to the direction and control of the court, and their compensation must be settled by the chancellor who appoints them, and has jurisdiction over the accounts.

The facts of this case are entirely different from those set out in Mann v. Wakefield, 11 Pa. Superior Ct. 18; and Krodel’s Assigned Estate, No. 2, 27 Pa. Superior Ct. 421, and we do not feel that these authorities favor the contention of the appellant.

In the absence of any statutory regulation, auditors are entitled to a reasonable compensation for their services, Porter’s Appeals, 30 Pa. 496, and, while it was deemed necessary by the legislature to fix a definite sum for auditors in certain cases, neither a receiver nor an auditor appointed to pass on an account is permitted in any case to charge an unreasonable or extortionate fee, and in determining this, the court having review of the account, is, in the first instance, the proper tribunal to declare what is a proper charge, and unless there is clear error in that adjudication, it will not be disturbed on review.

After á careful examination of all the facts in the case, the judgment is affirmed.


author: Beavee, J.,

text:
    Philadelphia to use, Appellant, v. DeHaven.

      Road law — Paving assessments — Pleading—Assumpsit—Copy of municipal contract — Practice, C. P. — Acts of May 25, 1887, P. L. 271, and April 4,1907, P. L. 40.
    In an action of assumpsit brought under the provisions of the act of April 4, 1907, P. L. 40, providing for the collection of municipal claims by an action of assumpsit, it is imperatively necessary for a use plaintiff, bringing suit in the name of a municipality, to annex a copy of the contract between the municipality and the use plaintiff.
    Argued Dec. 18, 1908.
    Appeal, No. 174, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 610, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia to use of Barber Asphalt Paving Company v. Holstein DeHaven.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a paving assessment.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      Walter Biddle Saul, with him E. O. Michener, for appellant.

      Charles H. Downing, for appellee.

      February 26, 1909:
   Opinion by

Beavee, J.,

The use plaintiff declares in assumpsit for the recovery of a pavement laid in front of defendant’s lot. The statement of claim recites that:

“The Councils of the City of Philadelphia, by ordinance duly passed and approved by the Mayor on the 27th day of June, a. d. 1904, ordered and directed that the Department of Public Works of the City of Philadelphia be authorized and directed to pave, inter alia, 62d Street from Market Street to Lombard Street. A .copy of the said ordinance is hereto annexed and made part of this statement as ‘Exhibit A.’

“In pursuance of the ordinance set forth, the city of Philadelphia, by its duly constituted authorities, entered into a contract with the use plaintiff, the Barber Asphalt Paving Company, on July 25, 1906, for paving the said 62d Street from Market Street to Lombard Street with asphalt, in accordance with the terms of the said ordinance, for the price of $1.56 per square yard.

“The said sum to be paid by the property owners along the line of the said street.

“The use plaintiff, the Barber Asphalt Paving Company, pursuant to the said contract and ordinance, paved the said 62d Street in front of the above described lot, belonging to the defendant, which said work was completed on the 13th day of October, 1906, and, on the said 13th day of October, 1906, J. Harvey Gillingham, surveyor and regulator for the 12th survey district of the city of Philadelphia, certified that the said work had been completed, and measured the amount of the said paving laid in front of the said property of the said Holstein DeHaven, and in accordance with the ordinances of Councils, duly assessed the said amount, to wit, 75,556 square yards of asphalt paving at $1.56 per square yard, $117.87, against the said Holstein DeHaven and the said property. A true copy of the said assessment bill, signed by the said J. Harvey Gillingham, is hereto annexed as ‘Exhibit B.’ The said work in front of the said property was done in strict accordance with the contract between the use plaintiff and the city of Philadelphia, and the defendant, in accordance with the Act of assembly approved the 4th day of April, a. d., 1907, P. L. 40, became liable to the plaintiff for the cost of the said paving, to wit, $117.87.”

The defendant, in his affidavit of defense, alleges that the plaintiff is not entitled to recover, for the reason that he has not set forth in his statement of claim a copy of the contract alleged by him to have been made between the ci,ty of Philadelphia and himself.

The Act of May 25, 1887, P. L. 271, requires, in sec. 3, that: “The action of assumpsit shall be accompanied by copies of all notes, contracts, book entries or a particular reference to the records of any court within the county, in which the action is brought, if any, upon which the plaintiff’s claim is founded.”

This portion of the defendant’s affidavit of defense is in the nature of a demurrer to the statement and is, we think, well founded. No opinion was filed in the court below, but we assume that the rule for judgment for want of a sufficient affidavit of defense was discharged because of the failure of the plaintiff to file a copy of the contract upon which his action was founded, for without such a contract as he has described in his statement of claim, he would have had no authority whatever to do the work, for which he charges the defendant.

' In Philadelphia v. Jewell, 135 Pa. 329, the present chief justice, delivering the opinion of the court, at page 338, said: “Actions by a municipal corporation to the use of a contractor who has done the work, against the owner of property charged with the payment for it, are a species of tripartite contests, unknown to the common law, and presenting some difficulties in procedure under its forms. The general rule, even in Pennsylvania where equity is part of the common law, undoubtedly is that the rights of the legal plaintiff only can be regarded and must prevail, but the rule has as many exceptions as the principles of equity require for their enforcement. The authority of municipal corporations to impose the cost of paving upon the property fronting on the street paved, is a part of the power of taxation, and inherently is exercisable without regard to the property owner’s consent, and at the sole discretion of the taxing body. The vital necessities of government do not in general permit a review of its exercise of the prerogative of taxation by courts or juries; but th'e taxing authority may, in its discretion,.permit such a review within specified limits.- In- the class of cases now under consideration it has done so. The right of the city to order the paving of its streets, to determine the kind of pavement, the manner of its doing, the terms of the contract, etc., is independent of the property owner’s judgment or consent: Philadelphia v. Brooke, 81 Pa. 23; Philadelphia v. Burgin, 50 Pa. 539; Hutchinson v. Pittsburg, 72 Pa. 320. But, on the other hand, when the property owner has had certain rights conceded to him, either by statute or by municipal ordinance, the courts will allow him to assert them against the city itself, as well as against the contractor to whose use the city sues: Reilly v. Philadelphia, 60 Pa. 467; Pepper v. Philadelphia, 114 Pa. 96. Appellant’s argument asks, 'Has a property owner who is no party to the contract any rights superior to those of the parties themselves?’ The answer is, Yes, if the law gives them to him.”

We are of opinion that the procedure act of 1887 gives the defendant the right to have a copy of the contract between the city and the use plaintiff, under which the work in front of his property was done, filed, with the statement of claim, inasmuch as the use plaintiff’s right to recover depends upon that contract. In view of this defect in the defendant’s statement of claim, we think the court below was correct in discharging the rule for judgment and it is, therefore, unnecessary to consider the other part of the affidavit, particularly in view of the fact that no opinion is filed by the court below.

The questions as to the form of the action and the right of the plaintiff to recover, under the Act of April 4, 1907, P. L. 40, will properly arise at the trial.

Decree affirmed, without prejudice, etc., and appeal dismissed, at the costs of the appellant.


text:
    Cox, Appellant, v. Philadelphia City Pottery Company.

      Master and servant — Contract of employment — Evidence—Corporation.
    1. In an action against a corporation to recover salary as manager, where the evidence shows that the plaintiff had acted as manager of the business before it was incorporated, the written contract of employment between the prior owner of the business and the plaintiff, is not admissible, if there is nothing to show that the plaintiff worked under this contract as manager for the corporation.

      Evidence — Expert—Books-—Business profits.

    2. A court cannot properly exercise its discretion as to whether or not expert testimony should be received to show the profits and losses of a business, without the books and invoices being produced and offered in evidence.
    Argued Dec. 18, 1908.
    Appeal, No. 223, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1904, No. 1,433, on verdict for defendant in case of William Cox v. Philadelphia City Pottery Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for salary as manager of a corporation. Before Ralston, J.
    At the trial it appeared that the owner of the defendant’s business prior to the incorporation of the company was John E. Jeffords.
    Defendant made the following offer:
    Mr. Scott: I offer in evidence the contract between John E. Jeffords and William Cox as follows:
    “Philadelphia, April 25th, 1899. Mr. William Cox, 1310 North 5th Street, Philadelphia, Pa. Dear Sir: I will engage you to fill the position as agreed in verbal conversation for one year from May 1st, proximo^ at the following salary: $1,200 to be paid in monthly installments and $200 to be paid at the end of the year. In case the business pays $6,000 per annum, or over, an additional sum of $350 is to be paid at the end of the year. The above arrangement to continue for one year from date. Yours truly, John E. Jeffords. April 29th, 1899, accepted. William Cox.”
    Objected to. Objection overruled. Exception for plaintiff. [1]
    The testimony of Robert D. Vollum, a witness called by defendant, was as follows: “Q. What was the profit or loss as shown by the books of the Philadelphia City Pottery Company for the year 1901?”
    Objected to. Objection overruled. Exception. [1]
    “A. For the year 1901 there was a loss of $360.48. Q. What was the profit or loss as shown by the books of the Philadelphia City Pottery Company for the year 1901? A. For the year 1901 there was a loss of $360.48. Q. For the year 1902? A. For the year 1902 there was a profit of $5,223.86. Q. For the year 1903? A. There was a profit of $607.64.”
    When on cross-examination the said witness testified as follows and the following motion was refused: “Q. You have no knowledge of this business except as derived from the books which you have read? A. That is all. Q. You had no knowledge of the current business at the time that the entries were made in the books? A. No, sir. Q. In speaking of the years 1901, 1902 and 1903, you are referring to the calendar years? A. Yes, sir. Q. From January 1st to December 31st in each case? A. Yes, sir. Q, Were the books closed at the end of each of these calendar years? A. They were. Q. Is there any evidence that the property of the company defendant was appraised or inventoried by anyone? A. There was not. Q. Then how can you say there was any particular value for the property of this corporation at the beginning or ending of any of these years? A. The books were never changed as a firm and the work continued the same from the beginning of the books until I took hold of them. Q. This company was engaged in the business of manufacturing pottery? A. Yes, sir. Q. I understood you to say then that there was nothing to show what stock or materials were in the hands of the company at the beginning or the ending of either of these years? A. Yes, sir. Q. How was that shown? ' A. By the inventory book. Q. Where is that book? A. I do not know; I saw it. Q. When did you see it? A. When I was up there, in 1905.”
    Mr. Dechert: I call for the production of the inventory book.
    Mr. Scott: It is not here.
    Mr. Dechert: I ask that the testimony of this witness on this subject be stricken from the record; because the book is not here.
    Motion refused. Exception for plaintiff. [2]
    The court charged the jury in part as follows:
    [The question which you will have to determine is, was that ■ the agreement under which this new corporation, which succeeded the partnership, was acting with the plaintiff, or did the plaintiff make a new agreement with the corporation which succeeded and took the place of the contract which he had with John E. Jeffords & Company?
    Is there any evidence at all in any statement of the plaintiff that he entered into a new agreement with different terms from this old one? I am speaking of the time in 1904 when he said there was a new agreement under which he was employed at $25.00 a week. It is true there are entries in the books showing salaries at the rate of $1,750 a year, but you have a period of thirty weeks running from February 1, at the very .beginning of his employment, when he was only paid $25.00 a week. There are other times when he was paid. $33.65 a week — and it is marked in the books at the rate .of $1,750 a year. Was that $1,750 a year dependent upon the corporation having a net profit of $6,000 according to the terms of the old agreement? Or do you find any evidence that they agreed to pay him $1,750 a year without regard to profit or loss?
    If you find from all the evidence in the case that that was their agreement; that he was not paid what they had agreed to pay him, then you should render your verdict in favor of the plaintiff.
    On the other hand, if you find that this written contract was the basis of his employment and that his employment continued under that and subject to its terms and conditions and was not altered by any subsequent contract, then the evidence shows, I think without dispute, that he has been fully paid and your verdict should be for the defendant.] [3]
    February 26, 1909:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) portions of charge as above, quoting it.

      Henry T. Deckert, of Potter, Dechert & Norris, for appellant.
    The written agreement of 1899 was not admissible. The defendant sought to prove profits of less than $6,000 per year. To do so it was incumbent to offer in evidence some facts from which the jury could draw an inference. Instead of that there was submitted only Mr. Vollum’s opinion derived from facts not in evidence. This was error: Ryder v. Jacobs, 182 Pa. 624; Building Society v. Holt, 184 Pa. 572; Phila. v. Neill & Lincoln Savings, etc., Co., 211 Pa. 353.

      Henry J. Scott, for appellee.
    Whether a contention is such as calls for expert testimony is largely in the discretion of the trial judge: Phila. v. Neill & Lincoln Savings, etc., Co., 211 Pa. 353.
    Appellant objected, not that the books were simple and plain, but that the character of evidence was improper. That such evidence is competent has been decided: Jordan v. Osgood, 109 Mass. 457.
   Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff claimed for his services as manager of a pottery company in Philadelphia from February 12, 1901, to March 9, 1904. It appears from the plaintiff’s declaration and his testimony, and the evidence offered from the books of the defendant corporation in support of the plaintiff’s claim, that a jury might have found a substantial sum in favor of the plaintiff. But under the admissions of evidence and charge of the court, the jury found a verdict in favor of the defendant.

It appears in evidence that the plaintiff had been in the employ of John E. Jeffords for over one year prior to February 12, 1901, under a written contract fixing his salary.at $1,400 per annum, with an additional $350 if the business made a profit of $6,000 or more per annum. The plaintiff’s testimony is quite clear that this arrangement terminated at the end of the first year, and he worked under another arrangement until Jeffords’ business was turned over to the corporation on February 12, 1901. We do not find in the record sufficient evidence to warrant the court in permitting the jury to find that the plaintiff worked for the corporation under the contract above referred to. By its terms the contract was for one year from May 1, 1899; the parties were Cox and Jeffords; the business was discontinued by Jeffords in February, 1901. Nothing was shown to connect this contract with the employment of Cox after May 1,1900. On this point Cox testified: “ I had a contract for one year from May 1,1899, to April 30,1900. Q. And you continued right along under that contract? A. I did not. Q. When did you change? A. The first of the year. Q. The first of what year? A. 1900. December 30, 1900, my salary was entered up at $1,750 a year in their books. Q. And that is the contract under which you went to work for John E. Jeffords and continued to work for the Philadelphia City Pottery Company? A. That is the contract I worked under for John E. Jeffords for one year.”

The first assignment of error raises the question of the admissibility of the written contract referred to, dated April 25, 1899, accepted April 29,1899, by William Cox. In our opinion, there was not sufficient evidence to warrant the court in permitting the jury to find that the plaintiff worked for the defendant corporation under that contract and, therefore, we sustain the first assignment of error.

The second and third assignments relate to the admission of the testimony of Robert D. Yollum and the refusal to strike it out. He was an expert witness called by defendant to prove the profits and loss of the defendant company based on said contract. This for the purpose of showing that in none of the years that the plaintiff was employed by the corporation did the profits amount to $6,000. We think these assignments must be sustained on two grounds: (a) It was not shown that the plaintiff was employed under that contract, and (b) if the defendant had been entitled to prove the profits of the business, it was error in the court to allow Vollum to testify, as an expert, to what the books and invoices showed, without the same being produced and offered in evidence. Upon the latter question our attention has been called by the defendant to the following cases: Phila. v. Neill & Lincoln Savings, etc., Co., 211 Pa. 353; 12 Am. & Eng. Ency. of Law (2d ed.), p. 428, and Jordan v. Osgood, 109 Mass. 457 (the latter case is a footnote on p. 428, vol. 12 Am. & Eng. Ency. of Law). The exact language on this point is: “An accountant who has examined certain books and schedules which have been introduced in evidence may state the results of his computation therefrom not involving mere inferences.” We also call attention to Ryder v. Jacobs, 182 Pa. 624, in the syllabus of which we find: “ Whether a witness be a competent expert, and whether the contention be such as calls for expert testimony, is largely in the discretion of the trial judge.” See also Building Society v. Holt, 184 Pa. 572, where Mr. Justice Dean (p. 577) said: “As to the second assignment, the secretary of the society was asked if Holt had not always been recognized by the society as the owner of the stock after the alleged transfer. This question, on objection by plaintiff, was overruled. The ruling was correct; the object was to elicit an opinion formed from the entries in the society’s books and the declarations in the mortgage. The court and jury were just as capable of forming an opinion from these facts as the witness, and that is what they were there for.” The above cases and others recognize that the question of admitting expert testimony in a given case is largely discretionary with the court below. This principle we do not question, but from all the cases we reach the conclusion that a court cannot properly exercise its discretion as to whether or not expert testimony should be received to show, for. instance, the profits and losses of a business, without the books and invoices being produced and offered in evidence. It must be conceded in the present case that the jury passed upon the question of profits on the testimony of Vollum who had examined the books and papers, but they were not in court and of course were not in evidence. It may be that the books and invoices were so plain that the court and jury could readily determine whether or not the profits amounted to or exceeded $6,000 per annum. We thus have the plain case of a court exercising its discretion in allowing expert testimony as to what profits the books and invoices showed, without seeing the same. This we think is clearly wrong. The second and third assignments are sustained.

The fourth assignment raises the question of the correctness of a portion of the charge of the. court. This part complained of is the logical result of the errors raised by the first, second and third assignments, and having sustained those, it follows that the fourth assignment must also be sustained.

We are quite clear that the evidence did not entitle the defendant to have the contract of April 25,1899, in evidence.

The assignments of error are all sustained and the judgment reversed with a venire facias de novo.


author: Per Curiam,

text:
    Platt, Appellant, v. Platt.

      Divorce — Cruel and barbarous treatment — Evidence.
    1. A wife’s refusal to have sexual intercourse with her husband is not legal cruelty and is not a ground for divorce.
    2. A husband’s suit for divorce against his wife on the ground of cruel and barbarous treatment will be dismissed, where the evidence shows that the wife was irritable, nagging, bad tempered, and lacking in affection for her husband, that she made indefinite threats, but did not carry them out, and never offered him physical violence.
    3. The acts or conduct of the wife towards her husband that will entitle the latter to a divorce on the ground of cruel and barbarous treatment must be not only such as render his condition intolerable or life burdensome, but such as amount to legal cruelty.
    Submitted Dec. 18, 1908.
    Appeal, No. 230, Oct. T., 1908, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 78, dismissing libel in divorce in case of James A. Platt v. Emma W. Platt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 26, 1909:
    Libel for divorce on the ground of cruel and barbarous treatment. Before Magill, J.
    The opinion of the Superior Court states the case.

      Error assigned was in affirming report of Beven Aubrey Pennypacker, Esq., master, and dismissing the libel.

      Max Graft, for appellant.
    No book for appellee.
   Per Curiam,

A careful examination of the evidence shows that the respondent was irritable, “nagging,” bad tempered and lacking in affection for the libelant for a considerable period of time, but that she never offered him physical violence of any sort, and, so far as the libelant can testify, never made any move to carry out the indefinite threats she is alleged to have made in her bad tempered moods. Viewing these alleged threats in the light of the other circumstances, we are unable to conclude that they were such as to create reasonable apprehension of personal violence. Nor are we able to conclude, satisfactorily, that her course of treatment of him, taken as a whole, was such as to endanger life or health, and render cohabitation unsafe. And it is to be borne in mind that the acts or conduct of the wife towards her husband that will entitle the latter to a divorce upon the ground of cruel and barbarous treatment, must be not only such as render his condition intolerable, or life burdensome, but such as amount to legal cruelty. If by other means, which do not constitute “legal cruelty” as that term has been frequently defined in the cases, his condition is rendered intolerable, the clause of the statute under consideration does not apply. The evidence thus far alluded to, and the similar evidence in the case is not sufficient to sustain a finding of the facts essential to a lawful dissolution of the marriage tie.

As to the allegation that the respondent refused to have sexual intercourse with the libelant, it is sufficient to refer to D’Aguilar v. D’Aguilar, 1 Haggard, 773, followed by our Supreme Court in Eshbach v. Eshbach, 23 Pa. 343, and the discussion of the question in the opinion of our Brother Morrison in Johnson v. Johnson, 31 Pa. Superior Ct. 53. These decisions are to the effect that it does not constitute “legal cruelty.” See also opinion of Judge Stowe in Magill v. Magill, 3 Pittsburg Rep. 25.

The order approving the report of the master is affirmed and the libel is dismissed at the costs of the appellant.


text:
    Johnson County Savings Bank v. Koch, Appellant.

      Bills of exchange — Negotiable paper — Fraud—Prima facie case — Burden of proof — Evidence—Transactions between other parties.

    1. In a suit against an acceptor of bills of exchange, where the evidence shows that the acceptor signed his name on the notes knowing that they were some sort of an obligation for payment, and there is no evidence of fraud so as to impeach the title of an innocent holder for value before maturity, the offering of the bills with indorsements makes out a prima facie case, entitling the holder to a recovery.
    2. Nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity. It is of the utmost importance to the commerce of the country that it should be sternly adhered to, however hard may be its operation in particular cases.
    3. In an action upon negotiable paper where the maker alleges improper methods resorted to by the payee in securing the paper, it is proper to exclude evidence tending to show similar, but independent transactions between the payee and other parties.
    Argued Dec. 19, 1908.
    Appeal, No. 58, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1905, No. 2,332, on verdict for plaintiff in case of Johnson County Savings Bank v. Christopher Koch.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit by indorsee against acceptor of bills of exchange. Before Kinsey, J.
    At the trial the defendant alleged as a matter of defense improper methods pursued by the Puritan Manufacturing Company, the drawee in the bills, and in support of such allegations made the following offer:
    Mr. White: I offer to prove by this witness that at about the time that the representations were made by the agent of the Puritan Manufacturing Company to the defendant similar misrepresentations were made to this witness; that the jewelry delivered to this witness by the Puritan Manufacturing Company was worthless; that it was not gold-filled jewelry, but the price at which it was placed with him was exorbitant; that they gave to him a specifically defined territory within which no other jewelry was to be placed, and that other jewelry was placed by the Puritan Manufacturing Company within the territory given to him, the witness; that the jewelry was guaranteed to him by the agent Bell to be of the quality which would wear for from five to twenty years; that he sold some of the goods, and found that they did not wear except for a few days. That it was represented to him that the acceptances identical in form with the ones sued on here at the time he signed them were acceptances of the goods or receipts for the goods, and that he signed them believing they were merely receipts for or acceptances for the goods; that the first time he learned that the things he had signed were negotiable instruments was when collection was attempted to be made by the same plaintiff here, the Johnson County Savings Bank of Iowa City, Iowa; that the baby rings which were represented to be solid gold were not; that he represented to him that the Puritan Manufacturing Company were the manufacturers of the goods which were sent to him, and that they were not the manufacturers of the goods; that the goods were selected by the Puritan Manufacturing Company, the numbers of them, kind and quality were all fixed, the price at which they were to come to him was fixed by the Puritan Manufacturing Company and the price at which they were to be sold by him was fixed by the Puritan Manufacturing Company.
    Mr. Maloney: I object to the offer.
    Plaintiff’s objections sustained.
    Exception for defendant. [3]

      The court charged in part as follows:
    [The man who has received that paper before maturity, without any notice of what may be the dispute or contention between the maker of the paper and the payee, that is recipient of such commercial paper, and has paid cash for it as a consideration, or whatsoever it may be, and in case of default of payment of it is obliged to come into court to collect the amount of it from the man who made it, such suitor being, I repeat, an honest, bona fide holder, as the law calls it, for value before maturity and without notice, must prove beyond any question that such holder is defective in one of the elements by which the law requires he shall hold it, to wit: either he had some notice of some defect in the note, the consequence of a fraud at its inception, the consequence of not having received it before maturity in due course of business, or. had not paid cash for it, but is simply posing as such bona fide holder for the purpose of avoiding differences between the original parties for such a paper.] [12]
    [Now, I am obliged to say to you in the judgment of the court, under the evidence submitted there is no such knowledge of defect brought home to the holder of this note, the plaintiff, — the Johnson County Savings Bank, — that would justify a verdict upon your part against them. That being the view I take I am obliged to relieve you of the responsibility of deciding the case and take it upon myself by directing your verdict to be in favor of the plaintiff for the amount of these two notes with the interest due thereon.] [13]
    [You will understand, so that you may comprehend clearly what you are doing, that had there been testimony that would show any collusion upon the part of the Johnson County Savings Bank, the recipient of these notes, whereby they, as I said a moment ago, were to appear before us pretentiously as honest holders for value, then I might have let in the defense between Koch, the defendant, and the Puritan Manufacturing Company, the original parties to the note. This testimony was admitted mostly by the court with the possible anticipation that further on in the case it might be shown that the Johnson County Savings Bank was in some way implicated. They may have been implicated; it is impossible for us to know that as a fact. The most we can say as a matter of law is that here they have not been so proven to be implicated before us, and that being the fact your verdict must be accordingly. This relieves us, therefore, from going into the question of the determination of the issue between the Puritan Manufacturing Company and the defendant as to whether or not this was a binding contract upon Koch, and if so, whether or not there was any fraud perpetrated upon him which the law would notice.] [14]
    [Your verdict in this case must be for the plaintiff upon those two notes.] [15]
    Verdict and judgment for plaintiff for $225.04. Defendant appealed.

      Errors assigned were (3) rulings on evidence, quoting the bill of exceptions; (12-15) above instructions, quoting them.

      W. L. Sheppard and W. W. Porter, of Porter, Foulkrod & McCullagh, for appellant.
    Similar transactions appear in Puritan Mfg. Co. v. Westermire, 84 Pac. Repr. 797; Elgin Jewelry Co. v. Estes, 50 S. E. Repr. 939; Main & Co. v. Dearing, 84 S. W. Repr. 640.
    The facts of this case, in relation to the fraudulent method employed to obtain the appellant's signature to a negotiable instrument, very closely resemble the facts in the case of Brown v. Schock, 77 Pa. 471. See also Erie City Iron Works v. Barber, 102 Pa. 156; Hexter v. Bast, 125 Pa. 52.
    Evidence of other similar transactions should have been admitted: Neff v. Landis, 110 Pa. 204; Penna. Co. v. R. R. Co., 153 Pa. 160; Schofield v. Shiffer, 156 Pa. 65; Stauffer v. Young, 39 Pa. 455; French & American Importing Co. v. Drug Co., 86 S. W. Repr. 836; Wilson, Close & Co. v. Pritchett, 99 Md. 583 (58 Atl. Repr. 360).

      Clifton Maloney, for appellee.
    Mere suspicion of a defect of title, or knowledge of circumstances that would excite such suspicion in the mind of a prudent man, or gross negligence of the taker at the time of the transfer, is not sufficient to defeat the plaintiff’s prima facie title as a holder in due course: Valley Savings Bank v. Mercer, 55 Atl. Repr. 435; Phelan v. Moss, 67 Pa. 59; Second Nat. Bank v. Morgan, 165 Pa. 199; Lancaster County National Bank v. Barber, 178 Pa. 91; Moorehead v. Gilmore, 77 Pa. 118; Battles & Webster v. Laudenslager, 84 Pa. 446.
    February 26, 1909:
    Commission of the act charged cannot be proved by showing a like act to have been committed by the same person: Veit v. Class & Nachod Brewing Company, 216 Pa. 29.
   Opinion by

Morrison, J.,

This suit was for the collection of two drafts, dated September 15,1904, drawn as follows: Iowa City, Iowa, September 15, 1904. Three months after date pay to the order of Puritan Mfg. Company at Iowa City, Iowa, ninety-five 00-100 dollars 195.00, value received and charge to account of Puritan Mfg. Company, per R. To Christopher Koch, Philadelphia, Pa. Germantown Ave., Diamond & 6th Sts. Indorsed: October 24, 1904. Pay Johnson Co. Savings Bank, Iowa City, Iowa, or order, Puritan Mfg. Co.” Both drafts were alike in all respects except the second one was drawn at six months instead of three. Both of said bills of exchange were accepted across their face on September 15, 1904, as follows: “Accepted, Christopher Koch, Jr.” And the appellant admits the genuineness of his signature to the acceptances. These bills of exchange were given by the appellant for a lot of cheap jewelry sold and delivered to him by the Puritan Manufacturing Company in pursuance of a written contract, dated August 18, 1904, and signed by appellant. He subsequently requested a copy of the contract and on August 26, 1904, a copy of it was sent him. The jewelry was brought to the appellant about the middle of September, a month after he signed the contract and two weeks after he received a copy of it. When the goods were brought for delivery the appellant raised some question in regard to a bond which the company was to give him and he refused to sign the acceptance until he had had the bond examined by a lawyer. Appellant’s own testimony shows that he consulted his lawyer and in the evening received the goods and signed the acceptances. He does not prove any trick, artifice or fraud connected with the signing of the acceptances which would invalidate them in the hands of an innocent purchaser for value, before maturity, and without notice. He testified that he signed what they told him were acceptances or receipts for the goods; that he signed four of these acceptances did not seem to strike him as peculiar, but it would be absurd for the company to take four separate receipts for the delivery of the goods. He says he did not at that time think there was any liability on his part to pay them, except to the amount of goods actually sold by him every three months. Yet he admits receiving a letter, dated September 23, 1904, from the manufacturing company as follows: “We beg to acknowledge receipt through our Mr. Bell of your four acceptances for $95.00 each, all dated September 15, and due in 3-6-9 and 12 months, which we have passed to your credit in settlement of your invoice.” Appellant further says that he did not know that the acceptances he signed were notes, until September 23,1904, and again that he was not sure they were notes until December. But on December 9,1904, appellant wrote a letter to the Puritan Manufacturing Company which either convicts him of being untruthful or of having a very poor memory. In that letter, among other things, he says: “Times are very hard in my neighborhood owing to the dullness in the mills. When I placed my order, I fully expected to sell enough of your goods to pay the notes as they became due.” Now this clearly refers to the order for the goods, dated August 18, 1904, nearly a month before what he calls the notes were signed. In the same letter he says: “At the time of arrival of goods I asked your Mr. Paul to make the time of payment 6, 8, 10, 12 months respectively, same as he offered to Mr. Burk of 11th and Girard ave. This he refused to do, but stated that if I was unable to meet the note due next week to write to you and explain the situation to you, same as I did to him, and you would grant the extension beyond a doubt. Gentlemen: I am up against it good and hard and it is absolutely impossible for me to meet the note next week. Will pay you for what goods I have sold, and if you can grant me an extension of sixty days on the balance, will be able to meet it when due, or if I am able to pay sooner will certainly do so.” It seems to us idle for the appellant to contend, in the face of the evidence furnished by himself, that he did not sign and deliver the acceptances in suit with a full knowledge that they were obligations given in payment of the jewelry sold and delivered to him by the Puritan Manufacturing Company. If this is so, how absurd it was for him to contend at the trial that he was not liable for the acceptances held and sued upon by the Johnson County Savings Bank. There is ample ground for a reasonable contention that, under all of the evidence in this case, the defendant would fail to establish his contention if the suit had been in favor of the Puritan Manufacturing Company. But the view we take of the case relieves us from deciding that question. All of the evidence admitted, as well as the competent evidence (if any) rejected by the court is wholly insufficient to invalidate the drafts in the hands of an innocent holder before maturity for value and without notice of any ground of defense by the acceptor.

The negotiable instruments Act of May 16, 1901, P! L. 194, provides as follows:

“Section 51. The holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument.
“ Section 52. A holder in due course is a holder who has taken the instrument under the following conditions: 1. That it is complete and regular upon its face. 2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact. 3. That he took it in good faith and for value. 4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.
“Section 56. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

The testimony clearly shows that the appellee purchased the paper in suit in due course of business, for value, without notice and before maturity, and, therefore, the learned court below was clearly right in directing a verdict for the plaintiff. Upon this point the appellee made a prima facie case by the paper and rested. The appellant then went into the enemy’s camp and took depositions and read them in evidence, and they affirmatively show all that is requisite, in the case of negotiable paper, to vest in the holder a good title free and clear of all defenses which might have been made by the acceptor as against the drawer.

“Fraud is not to be presumed. It must be clearly proved; or it may be inferred from facts, clearly proved, leading to that conclusion:” Jackson et al. v. Summerville, 13 Pa. 359. That case is cited and recognized in Lasher v. Medical Press Co., Ltd., 203 Pa. 313, and we followed it in King v. Grannis, 29 Pa. Superior Ct. 367. We do not find in the record sufficient evidence of fraud to affect the title of the appellee to the paper in suit. The portions of the act of 1901, above quoted, are but a restatement of the law as it has long been recognized in Pennsylvania. The rule is that it is not sufficient to show suspicious circumstances, such as might lead a person taking paper by indorsement to make inquiry, but actual mala fides must be proved: Phelan v. Moss, 67 Pa. 59. In that case the Supreme Court said: “Where the bill has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title .... that even gross negligence is not alone enough to destroy the title of a holder for value; but that a case of mala fides on the part of such holder, must be made out in order to defeat his claim.” Phelan v. Moss is quoted with approval by Mr. Justice Fell in Lancaster County National Bank v. Garber, 178 Pa. 91.

“The bona fide holder of a negotiable note for value without notice can recover on it, notwithstanding he took it under circumstances which ought to. excite the suspicion of a prudent man:” Second Nat. Bank v. Morgan, 165 Pa. 199. See also Moorehead v. Gilmore, 77 Pa. 118, where Mr. Justice Shabswood said: “The latest decisions both in England and this country have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity. ... It is of the utmost importance to the commerce of the country that it should be sternly adhered to, however hard may be its operation in particular cases.”

But in the present case we see no ground for sympathy because it is a hard case. The appellant evidently purchased a lot of cheap trash jewelry, very well knowing its character. He expected to sell it to his customers and make money out of them by so doing. If he knew it was cheap and comparatively worthless stuff, his intention to profit by selling it was on a par with the conduct of the Puritan Manufacturing Company in selling the stuff to him. The testimony tends to show that the appellant is a business man of fair intelligence, and we do not think this case calls for any sympathy for him.

Complaint is made that the learned court below excluded evidence tending to show independent transactions between the Puritan Manufacturing Company and other parties. We do not think the court erred in excluding such testimony. There is nothing in the present case which would warrant permitting the appellant to resort to that character of evidence. In Veit v. Class & Nachod Brewing Co., 216 Pa. 29, it is said in the syllabus: “It is an established rule, applicable alike to civil and criminal inquiries, that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person. In 1 Wigmore on Evidence, p. 230, the rule is stated thus: “ In other words, it cannot be argued, because A did an act last year, therefore he probably did the act as now charged. Human action being infinitely varied, there is no adequate probative connection between the two.”

The question in the present case is confined to what took place between the Puritan Manufacturing Company's representatives and the appellant, and there is nothing in the whole record to impeach the title to the negotiable paper in the hands of the appellee.

We deem it unnecessary to discuss the thirteen assignments of error separately and they are all dismissed and the judgment is affirmed.


text:
    Commonwealth, Appellant, v. Short.
    March 8, 1909:

      Newspapers — Names of proprietors and editors — Act of May 2, 1907, P. L. 157.
    1. The Act of May 2, 1907, P. L. 157, is a valid exercise of the police power of the state, and is applicable to a weekly newspaper.
    2. Printing at the top of the reading matter of a newspaper the words: “Clearfield Republican, John F. Short, Editor. Clearfield Republican Publishing Company, Publishers,” is not a sufficient compliance with the act of 1907. In such a case if the company is a partnership, the names of the partners should be given, if a limited partnership, the names of the partners, officers and managers, and if a corporation, the names of the president, treasurer and secretary.
    Argued Oct. 29, 1908.
    Appeal, No. 172, Oct. T., 1908, by-plaintiff, from order of Q. S. Clearfield Co., Feb. T., 1908, No. 30, arresting judgment on verdict of guilty in case of Commonwealth v. John F. Short.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for violating the provisions of the Act of May 2, 1907, P. L. 157, in failing to print the name or names of the proprietor of a newspaper. Before A. O. Smith, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment was arrested. The commonwealth appealed.

      Error assigned was the order of the court in arresting the judgment.

      A. L. Cole, with him James H. Kelley, district attorney, and A. M. Liveright, for appellant.

      Singleton Bell, with him H. B. Hartswich, for appellee.
   Opinion by

Morrison, J.,

The defendant was found guilty as the owner, proprietor and editor of a weekly newspaper published in Clearfield county and failing to publish in a conspicuous position, as required by the Act of May 2,1907, P. L. 157, the name or names of the owner, owners, proprietor or proprietors of said newspaper, together with the name of the managing editor thereof. After verdict, on motion of the defendant's counsel, the learned court below arrested judgment and discharged the defendant, and from this judgment the commonwealth appealed.

The reasons assigned, in the court below, for the arrest of judgment were the following: 1. The Act of May 2, 1907, P. L. 157, is not a valid exercise of the police power. 2. The act does not apply to a weekly newspaper. 3. The purpose of the act being to give notice to the public who are the persons interested either as owner, proprietor or editor, and John E. Short being the sole owner, proprietor and editor, the printing of his name at the designated point is a sufficient compliance with the act.

The assignments of error raise the validity of the arrest of judgment and the action of the court in discharging the defendant. The question involved is stated thus: “Did the defendant, both the owner and editor of a weekly newspaper, comply with the Act of May 2, 1907, P. L. 157, by placing his name at the top of the editorial page as editor, and at the same place the ‘Clearfield Republican Publishing Company’ as publishers, without in any way indicating his identity or connection with said publishing company?”

The act of assembly in question is entitled: “An act requiring all newspapers published in this Commonwealth to print, in a conspicuous place, in every issue, the name of the owners, proprietors, or publishers, and the managing editors of the same; and making a violation of this act a misdemeanor and fixing the penalty therefor.”

Sec. 1. “Be it enacted, etc., That from and after the passage of this act, every newspaper published in this Commonwealth, whether it be published monthly, bi-weekly, semi-weeldy, or daily, or whether such publication be at regular or irregular intervals, shall publish in every copy of each issue, on the editorial page, in a conspicuous position, at the top of the reading matter, the name or names of the owner, owners, proprietor or proprietors of such newspapers; together with the name of the managing editor thereof; and if said newspaper or newspapers shall be owned or published by a corporation, then the name of the corporation shall be published, together with the names of the president, secretary, and treasurer, and managing editor thereof; and if the said newspaper or newspapers shall be owned or published by a partnership, or partnerships limited, then the name of the partners and officers and managers of said partnership, or partnerships limited, shall be published in like manner.”

The first reason assigned by the defendant’s counsel in arrest of judgment is: “The Act of May 2, 1907, P. L. 157, is not a valid exercise of the police power.” This reason was overruled by the learned judge below, he holding with the commonwealth and against the defendant’s contention. We are all of the opinion that the act in question is well within the police power of the legislature. It is a matter of common knowledge that the publication of libelous, slanderous and improper articles in public newspapers tends to create breaches of the peace, riots and sometimes bloodshed. That the legislature is vested with police power to enact proper laws to regulate and restrain such publications seems too clear to require extended argument. Such power is universally recognized to be lodged in the legislature. It is evident that the legislative mind considered that the act of May 2, 1907, would tend to restrain improper publications by reason of the requirements that the names of the owners and managing editors must appear in a conspicuous place in each issue of every newspaper published in this commonwealth. No sufficient reason is apparent justifying the courts in holding that the act in question will not tend to remedy the evils at which it is aimed. If it will or may have that effect, it is a proper exercise of the police power unless there is something illegal or unreasonable in the provisions of the act. We discover no hardship or unreasonable burden imposed, by the act, upon the publishers and editors of newspapers. The act applies to all of them and we see no ■ good reason for striking it down.

What is a proper exercise of the police power is a question for the courts, though large discretion is left with the legislature: Com. v. Vrooman, 164 Pa. 306. The same decision and many others hold that the legal presumption is in favor of the constitutionality of an act, because the act expresses the judgment of the legislative branch of the government upon the question with which it deals.

In Beer Co. v. Massachusetts, 97 U. S. 25, it was said: “However difficult it may be to render a satisfactory definition of it (the police power) there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals.”

In Lawton v. Steele, 152 U. S. 133, it is said: “The extent and limits of what is known as the police power has been a fruitful subject of discussion in the appellate courts of nearly every state in the union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance.” Then follows an enumeration of matters and things falling under this power. The court then continues: “Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.”

We deem it unnecessary to. cite further authorities as we are all of the opinion that the act in question should be upheld as a proper exercise of the police power.

The next reason is: “The act does not apply to a weekly newspaper.” Considering the title of the'act and the language of the first section thereof convinces us that it is broad enough to include weekly newspapers. The title reads: “An act requiring all newspapers published in this Commonwealth,” etc. Then in the first section of the act we find: “That from and after the passage of this act, every newspaper published in this Commonwealth,” etc. It is true that in the enumeration of the papers in the first section the weekly issue is omitted. But that is doubtless a clerical error. When we consider the mischief that the act was designed to correct and the language of its title, which must be considered a part of the act, and the language of the act itself, to wit, every newspaper published in this commonwealth, we are led to the conclusion that the provisions of the act apply to a weekly newspaper. The act so plainly indicates the purpose to have it apply to all newspapers that we would be doing violence to the plain legislative intent were we to permit a mistake of some copyist to nullify it as to weekly newspapers. The learned court below held that the act included all newspapers and in this view we concur.

This brings us to the third reason on which the learned court arrested the judgment and discharged the defendant. The reasons given by the court in his decision are not convincing. The requirements of the act of assembly are very plain. The defendant did comply with its requirements in so far as to publish in the proper place the name of the editor of the paper as follows: “Clearfield Republican, John F. Short, Editor.” Then follows: “Clearfield Republican Publishing Company, Publishers.” This ’ embraces all that is said in regard to the names of the owner, owners, proprietor or proprietors of the newspaper. If it is a partnership, the names of the partners should have been given. If owned by a limited partnership, the same rule would apply and the names of the partners, officers and managers of the partnership, or partnership limited, should be given. . If the Clearfield Republican Publishing Company is a corporation, the names of the president, secretary and treasurer should have been given. In brief, we consider the attempt of the defendant to comply with the act of assembly in question a failure in so far as a disclosure of anything except the name of the editor is attempted.

The assignments of error are sustained and the judgment is reversed, and it is now ordered and directed that the record be remitted to the court below, and that the defendant appear forthwith before the court of quarter sessions of Clearfield County, and that court is directed to enter the proper judgment enforcing the penalty prescribed by the act of assembly.


text:
    Groff v. City Saving Fund and Trust Company of Lancaster.
    February 26, 1909:

      Appeals — Final decree — Six months’ time limit.

    1. A decree overruling exceptions to an auditor’s report and confirming the same absolutely is a final decree, from which an appeal, if taken, must be taken within six months, and such time is not extended by exceptions filed to the decree, and subsequently quashed by the court.

      Equity — Equity practice — Appointment of auditors — Equity rules.

    2. Under equity rules 93 and 94, a court of equity may, if it chooses, appoint an auditor to distribute the moneys of an insolvent corporation among various creditors, after the insolvency of the company is established, and a receiver has been appointed.
    Argued Nov. 12, 1908.
    Appeal, No. 38, Oct. T., 1908, by L. E. Ryder, from decree of C. P. Lancaster Co., Equity Docket, No. 4, p. 183, dismissing exceptions to auditor’s report in case of Annie H. Groff v. City Saving Fund and Trust Company of Lancaster.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.

      W. U. Hensel and W. H. Keller, of Coyle & Keller, with them John E. Malone, for appellees and for motion to quash.

      B. F. Davis and T. B. Holahan, for appellant, contra motion to quash.
   Per Curiam,

1. In view of the recent decision in Jones v. Lincoln Savings & Trust Co., 222 Pa. 325, it is needless to discuss the question of the jurisdiction of the court below, to appoint a receiver of the defendant corporation upon the bill filed by Annie H. Groff, even if the appellant be in position to raise the question.

2. The court below was right in its interpretation of our decree in Groff v. City Saving Fund & Trust Co., 32 Pa. Superior Ct. 416, quashing this appellant’s appeal from a former decree distributing another fund, and remitting the cause to the court below “to be further proceeded with according to law and the rules of equity practice.” Equity rules 60 to 68, which regulate the trial of equity cases at issue upon answer, do not control a proceeding to distribute the moneys of an insolvent corporation among numerous and conflicting claims, after the insolvency of the company has been established, and a receiver has been appointed in a suit in equity to collect and preserve its assets. We agree with the appellee’s counsel and the learned judge below, that the appointment of auditors in this instance was justified by equity rules 93 and 94, and the settled practice of the courts of the state. It also would have been proper for the court to hear the claimants and make distribution of the fund without the aid of auditors. But the court was not bound to proceed in that mode, and an imperative direction so to proceed was not implied in our former decree. The direction to proceed according to the rules of equity practice was a direction to proceed according to the rules of equity practice applicable to the particular matter under consideration, and was complied with in this instance by the court.

3. It follows that the decree overruling the exceptions to the auditors’ report and confirming the same absolutely was not a decree nisi, such as is contemplated in equity rule 63, but a final decree, from which the appellant could have appealed at once without filing exceptions thereto. He nevertheless was required by rule 92, to file with his notice of appeal a brief statement of the errors he alleged to have been made by the decree appealed from, and we assume that this was done. But this was not to be acted on by the court below; the statutory period within which he was required to take his appeal began to run on the day the decree was entered. He could not extend the time for review by filing, in addition to his brief statement of errors, exceptions to the decree, alleging errors in overruling his former exception to the auditors’ report, and then appealing from the order quashing the exceptions filed after the final decree was entered: Keim’s Appeal, 27 Pa. 42; Frazier’s Estate, 7 Pa. Superior Ct. 473; s. c., 188 Pa. 415; Barlott v. Forney, 187 Pa. 301.

As the appeal was not taken until more than six months had elapsed after the final decree confirming absolutely the auditors’ report was entered, the motion to quash must prevail: Act of May 19, 1897, sec. 4, P. L. 67.

The appeal is quashed at the costs of the appellant.


text:
    Eisenberger v. Eisenberger, Appellant.
    February 26, 1909:

      Equity — Specific performance — Parol contract — Sale of land — Evidence.
    1. Specific performance of a parol contract for the sale of land, founded upon sufficient evidence that the contract had been entered into, possession taken by the plaintiff in pursuance thereof, and valuable improvements made by him upon the land will be enforced notwithstanding the fact that all of the purchase money has not been paid. The court in entering the decree will require the balance of the purchase money to be paid upon the delivery of the deed.
    2. There is no reason why a decree of specific performance should not be entered after a full hearing on the merits merely because a preliminary injunction was awarded at the beginning of the suit, which under the rules was dissolved.
    Argued Nov. 13, 1908.
    Appeal, No. 176, Oct. T., 1908, by defendant, from decree of C. P. Lancaster Co., Equity Docket, No. 4, page 367, on bill in equity in case of Maris E. Eisenberger v. William V. Eisenberger.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree awarding specific performance.

      B. F. Davis, with him H. M. Houser, for appellant.

      John M. Groff, with him L. N. Spencer, for appellee.
   Opinion by

Morrison, J.,

This is a bill in equity filed for the purpose of compelling the defendant to convey to the plaintiff the two tracts of land described in the bill, the legal title to which were in the defendant by conveyances duly executed, delivered and recorded. One of the tracts was purchased for the sum of $90.00, and the other for the sum of $511. The bill avers that these tracts of land were purchased by the defendant for the plaintiff, under a parol agreement that the plaintiff should go into possession of the lands and improve the same and that when he had paid the defendant the purchase price and interest thereon, the latter would convey the said lands by good and sufficient deeds to the plaintiff; that under said agreement the plaintiff went into the actual, open and notorious possession of said lands several years before filing his bill and has ever since retained such possession, and made valuable improvements thereon by erecting new buildings and repairing others and by planting peach and apple orchards thereon and other improvements to the value of nearly $2,000, and that the defendant had been fully paid for said lands in accordance with the parol agreement; that the parol agreement had been so far executed, and the improvements placed thereon by the plaintiff were of such value and character, that the plaintiff could not be adequately compensated in damages for defendant's failure to perform his part of the agreement, by conveying the lands to the plaintiff upon the payment of the purchase money in accordance with the agreement; that the plaintiff had requested the defendant to make such conveyances, but he refused so to do, averring that he owned the land in fee and was under no obligation to convey the same to the plaintiff.

The learned judge below, sitting as a chancellor, saw the witnesses and heard them testify and found all of the facts substantially as averred by the plaintiff and held, as a matter of law, that the plaintiff was entitled to specific performance of the parol contract, and made a final decree requiring the defendant to execute and deliver deeds conveying to the plaintiff said lands on the payment by the plaintiff to the defendant of the sum of $45.41, a balance of the purchase money and interest which the chancellor was not satisfied had been paid. In our opinion, under the well-settled law of Pennsylvania, the.plaintiff, by competent and sufficient evidence, established his right to have the said parol agreement specifically performed. In fact, the plaintiff sustained his averments by himself and four witnesses, while the defendant relied on his deeds and his own testimony, and the latter was not convincing.

“In modern equity practice a complainant in a court of equity cannot be turned out of court for want of jurisdiction merely because he has a remedy at law; it must be shown further that his remedy at law is adequate:” Gray v. Citizens’ Gas Co., 206 Pa. 303.

In Sower’s Admr. v. Weaver, 84 Pa. 262, it was said by Mr. Justice Gordon for the Supreme Court, p. 267: “That a parol gift, from a parent to a child, properly executed by possession and improvement, is valid, notwithstanding the statute of frauds and perjuries, will be found to be the settled law of this state since the case of Syler v. Eckhart, 1 Binn. 378. The question is generally one of execution. As in parol sales where the performance has been carried so far, or is of such a character as to make compensation difficult or impossible, the contract is exempted from the operation of the statute.” See Caldwell v. Caldwell, 24 Pa. Superior Ct. 230.

In Borie v. Satterthwaite et al., 180 Pa. 542, Mr. Justice Mitchell (p. 549), speaking in regard to specific performance of contracts for the sale of land, said: “As each of these grounds is and has always been a subject of general equitable jurisdiction, the suggestion that there is a full remedy at law does not merit serious discussion.”

In Schuey v. Schaeffer, 130 Pa. 16, it was held in equity, that specific performance of a parol contract for the sale of' land, founded upon sufficient evidence that the contract had been entered into, possession taken by the plaintiff in pursuance thereof, and valuable improvements made by him upon the land, would be enforced notwithstanding the fact that all of the purchase money had not been paid; that it was not error to decree specific performance, a deed to be executed and delivered to the plaintiff upon the payment of the purchase money due.

The present case comes fully under the rule laid down in Hart et al. v. Carroll, 85 Pa. 508. But it has been so long the settled law in Pennsylvania, and so often affirmed by our Supreme Court, that equity will enforce the specific performance of a parol contract for the sale of land where the facts are as found by the learned court below in the present case, that we refrain from lengthening this opinion with the citation of authorities to sustain a legal proposition that ought, at this time, to be understood by every lawyer.

The learned counsel for the defendant contends that the decree ought to be reversed because of a preliminary injunction alleged to have been issued on April 1, 1907, and because the case was not heard until March, 1908, about a year after that injunction was issued. For that reason, he argues that the final decree in this case ought to be reversed, citing equity rule No. 82 and some other authorities. We fail to see any force in this contention because the record shows that a full and final hearing was thereafter had and the learned chancellor found the facts and his conclusions of law and filed a decree nisi; the counsel for defendant then filed elaborate exceptions which were, after argument, overruled and the final decree filed which is here appealed from. The learned counsel also contend that two decrees were entered; we do not know what they mean unless they refer to the decree nisi and the one filed after the exceptions were dismissed. The latter is substantially a copy of the former, and the two decrees so filed are in accordance with the equity rules. The record shows that the defendant and his counsel participated in the hearing at every stage after the filing of the preliminary injunction, if one was filed, but we do not find any such injunction printed in the record. The defendant who has appeared and tried his case before the chancellor and filed his exceptions to the findings of fact and conclusions of law, and to the nisi decree, cannot be heard, after final decree, on the question of whether the preliminary injunction issued at the commencement of the suit was valid or invalid. The jurisdiction of the court does not depend on the preliminary injunction. If there was one, it filled its office and dropped out of the case so far as we can see.

The learned counsel next take the position that: “Where rights which are legal are asserted on one side and denied on the other, the remedies are at law. They cannot be settled under equity forms; this is undoubtedly the general rule.” In support of this proposition Washburn’s Appeal is cited (105 Pa. 480), and a number of other cases along the same lines, but a mere glance at these cases show that they hold that a court of equity has no jurisdiction to settle a disputed legal title to land. In such cases the defendant has the right to have the disputed questions of fact affecting his legal title submitted to a jury, according to the rules of law.

O’Neil v. McKeesport, 201 Pa. 386, is also cited, but that authority does not touch the question at issue in the present case, nor does Coward v. Llewellyn, 209 Pa. 582, another of defendant’s cases. Counsel also cites New Castle v. Raney, 130 Pa. 546, as sustaining the position that the plaintiff’s rights in the present case must be determined at law. But that case has no bearing on the power of a court of equity to enforce specific performance of a parol contract for the sale of land. Several other cases are cited, but they altogether show that the learned counsel for the defendant have entirely failed to distinguish the cases and comprehend the power of a court of equity in the enforcement of parol contracts for the sale of land.

We have examined the exceptions and specifications of error and find that they are all without merit. The decree is affirmed, and appeal dismissed, at the costs of appellant.