author: Porter, J,

text:
    McClure v. Lake Shore & Michigan Southern Railway Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Grade crossing.

    Where a driver of a team on approaching a railroad grade crossing stops to look and listen for a train at a point where he cannot see trains near the crossing, and then starts and drives directly on, although he could by stopping at a point sixteen feet from the track, have had a clear view of any train which was within a mile of the crossing, and the undisputed evidence is that the horses ran into the side of the train and were killed, the driver is guilty of contributory negligence as a matter of law, and no recovery can be had from the railway company for the loss of the horses.
    Argued May 10, 1909.
    Appeal, No. 208, April T., 1909, by defendant, from judgment of C. P. Mercer Co., April T., 1906, No. 70, on verdict for plaintiff in case of R. D. McClure v. The Lake Shore & Michigan Southern Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for the loss of two horses at a grade crossing. Before Williams, P. J.
    The circumstances of the accident are set forth in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $519.60. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      S. B. Mason, with him J. H. Osmer, A. B. Osmer and N. F. Osmer, for appellant.
    The appellant respectfully submits that, under the evidence on the part of the plaintiff, the case at bar, upon its facts, is substantially identical with the case of Kinter v. Penna. R. R. Co., 204 Pa., 497, and is ruled by it. See also Hartman v. Harris, 182 Pa. 172; Blotz v. Lehigh Valley R. R. Co., 212 Pa., 154; Myers v. B. & O. R. R. Co., 150 Pa. 386; McKahan v. B. & O. R. R. Co., 223 Pa. 1; Cent. R. R. Co. v. Feller, 84 Pa. 226.
    November 8, 1909.
    A traveler will not be allowed to say that he looked when the circumstances make it plain that the proper exercise of his senses must have shown him the danger: R. R. Co. v. Feller, 84 Pa. 226; Marland v. R. R. Co., 123 Pa. 487.

      Virgil L. Johnson, with him J. R. W. Baker, for appellee.
    Where the plaintiff has stopped, looked and listened, as is the uncontradicted evidence in this case, the question whether he stopped, looked and listened at the particular point where he could best see and hear is for the jury: Cookson v. P. & W. Ry. Co., 179 Pa. 184; Davidson v. Ry. Co., 179 Pa. 227; Summers v. R. R. Co., 24 Pa. Superior Ct. 615; Gray v. Penna. R. R. Co., 172 Pa. 383; Ely v. Ry. Co., 158 Pa. 233; Davidson v. L. S. & M. S. Ry. Co., 171 Pa. 522; Newton v. R. R. Co., 18 Pa. Superior Ct. 18; Ellis v. R. R. Co., 138 Pa. 506; Calhoun v. Penna. R. R. Co., 233 Pa. 298.
    We contend that the case at bar is ruled by Schwarz v. D., L. & W. R. R. Co., 211 Pa. 625.
   Opinion by

Porter, J,

The plaintiff brought this action to recover damages for the killing of a pair of horses, the destruction of a set of harness and the breaking of the pole of a surrey, which resulted from his team, driven by his employee, coming into collision with an express train of the defendant company, at a grade crossing. The team, in charge of plaintiff’s driver, approached the crossing from the north and the express train of the defendant company approached from the west side of the crossing. There was a cut upon the north side of the railroad, and the bank upon that side was, at the point of intersection of the right of way of the defendant company, with the west side of the public road, twelve feet higher than the top of the rail of the track of the defendant company. The public road from the north approached the track through a cut which extended back a considerable distance north from the railroad, through this higher ground on that side. The plaintiff had employed an engineer to make a survey and map of the locality, and that engineer was called as a witness and testified as to the conditions existing at the time of the accident. This witness, called by the plaintiff, testified that the track of the defendant company west of the crossing was perfectly straight for a long distance, and that at any point in the public road from the track of the defendant company to a point sixteen feet north of the track there was a clear and unobstructed view of the track for at least a mile. There was no dispute under the evidence that from any point in the public road sixteen feet north of the track the view of the track for at least a mile to the westward was entirely free from obstruction; some witnesses for the defendant testified that the track could be seen for fully two miles to the westward and it was so visible from any point in the public road north of the track for a distance considerably exceeding sixteen feet. The engineer who was called as a witness by the plaintiff testified that at a point at the top of the cut on the west side of the public road and twenty-eight feet from the center of the track of the railway the surface of the ground was twelve feet higher than the top of the rail of the track, and over nine feet higher than the surface of the public wagon road at the same distance, twenty-eight feet, north of the center of the track. The cut in the public road extended back north from the railroad track a considerable distance. All the witnesses agree that from a part of this cut a driver seated in a wagon or carriage could not obtain a view of the railroad track west of the crossing, and all of them substantially agreed that the track near the crossing, towards the west, could not be seen after a traveler on the public road had entered the deep part of the cut, although some of the witnesses testified that at some distance north of the railroad, where the surface of the ground on the west was not so high above the bed of the public road and the cuts not so deep, a view of the track could be obtained for a considerable distance to the westward, but not the portion of the track near the crossing. The surface of the ground on the north side of the railroad was higher than the track for a considerable distance west of the crossing, sufficiently higher to cut off trains upon the track for some distance west of the crossing from the view of' persons upon the public road at points before that highway entered the cut near the railroad. The cut on the north side of the railroad gradually became less towards the westward, and trains upon this more distant portion of the track were visible from some points upon the public highway more distant from the railroad than the cut through which the public highway descended to the. crossing. The plaintiff recovered a verdict in the court below, and the defendant appeals. The only assignment of error is founded upon the refusal of the court to give binding instructions in favor of the defendant, and the only question to be considered is whether the case ought to have been submitted to the jury.

There was a conflict of evidence as to whether the employees of the defendant company had given any signal, by the blowing of whistle or ringing of bell, of the approach of the train to the crossing. Several witnesses for the plaintiff testified that they had, for various reasons, been listening for such signal and that none was given, while a number of witnesses called by the defendant positively testified that they had heard the usual whistle of the locomotive. If this had been the only question involved the case would properly have been left to the jury. The question of the contributory negligence of the agent of the plaintiff, the driver of the team, was, however, squarely raised by the testimony produced by the plaintiff. That evidence established that the night when the accident occurred was dark, but it also established that the headlight of the locomotive drawing the train, with which the team of the plaintiff came into collision, was burning, and that that headlight would have been plainly visible, from a point on the public road sixteen feet north of the track, at all times after the train arrived at a point one mile to the westward of the crossing until it reached the crossing, if persons about to cross the track had stopped and looked for approaching trains. The only witness who saw the accident was the agent of the plaintiff, the driver of the team. He testified that the night was very dark, that he approached the crossing from the north and when he arrived at the cross roads 800 feet from the crossing he stopped, looked and listened for approaching trains, and that from this place, where he first stopped he could have seen a train upon the tracks, for a distance of only a quarter of a mile west of the crossing; that, neither hearing nor seeing anything, he proceeded without again looking until he arrived at a point in the public road within 100 feet of the railroad track, that the point where he then stopped was in the cut in the public road. He was not asked in chief whether he could see the railroad track or a train upon it, if there had been one, from that point, but it is significant that in his testimony in chief he did not say that at that point he looked for a train, merely saying that he stopped there and listened. His only testimony as to his opportunities for observation from this point was in cross-examination, as follows: "Q. Could you see down the track then? A. No, sir. Q. Why not? A. There was a bank there on each side; you couldn’t see. Q. Was there a bank 100 feet from the track? A. Yes, sir. Q. Wasn’t the bank down by the track? A. No; it runs down quite a ways. Q. You say you couldn’t see, now, neither up nor down the railroad from the place where you stopped? A. You could see down the track quite a ways, but couldn’t see handy to the crossing from where I stopped. Q. You saw nothing and heard nothing? A. No, sir. Q. Did you stop again after you left there until you were struck? ‘ A. No, sir.” His testimony as to what occurred after he made this stop 100 feet from the track, where according to his own statement he could not see the track nor the crossing, but only “down quite a ways,” was thus given in his examination in chief: “Q. Then what did you do? A. I drove on down toward the track, then. Did the train whistle or ring the bell? A. No, sir. Q. What was the next thing, then,' that happened? A. The team got struck with the train, at the crossing. Q. How far were you from the track when you first saw the train? A. The horses’ heads was about eight or nine feet back from the track, I think, about the length of the team. Q. What did the horses do? A. Well, they just reared up and jumped toward the track, and the train ran on to the crossing. Q. What was the next thing you knew, then? A. The next thing I knowed, I was on the ground, about three or four feet from the track.” Upon cross-examination he thus described the accident: “Q. Well, now, you say the horses got down within eight or nine feet of the track when this train came along there? A. Yes, sir. Q. And they reared up and made a plunge towards the train? A. Yes, sir. Q. Did you try to hold them? A. Yes, sir. Q. And you were thrown out? A. Yes, sir.”

The whole duty of one about to cross the tracks of a steam railroad at grade is not in all cases discharged by his stopping, looking and listening for the approach of a train. He must stop at a proper place and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger. When the driver of the plaintiff stopped to look and listen for approaching trains at a point 800 feet from the crossing he could, if his own testimony is to be believed, see only such trains as were then within a quarter of a mile of the crossing. It is manifest that this precaution was wholly insufficient; he could not have seen a train which was only twice as far from the crossing as he himself would have to travel before reaching the crossing. The witness testified that he drove slowly. If he drove at the rate of four miles an hour, a train running at forty miles an hour, as trains frequently do in the open country, must have been over a mile and a half from the crossing, at the time he started to drive this 800 feet, in order to reach the crossing at the same time he there arrived. The duty of those about to pass a grade crossing is to look for trains at a time when they may reasonably expect to see a train which may reach the crossing before they have passed over. Having stopped at this long distance from the crossing the driver proceeded without again looking or listening to a point in the cut in the public road where he again stopped, but where according to his own testimony the only part of the track on which he could see a train was quite a distance down and he could not see trains near the crossing. Having stopped at this point where he could not have seen trains with which there was danger of his coming into collision he proceeded without attempting to stop at a point sixteen feet from the track where he could have had a clear view of a train a full mile to the westward. Having stopped at a point where he could not see a train which might be approaching and near the crossing, it was his duty to proceed cautiously, with his team under control, and again stop at the point, where under the undisputed evidence in the case, his own safety and that of the team required him to stop and look for approaching trains. This driver testified that he was familiar with this crossing, had frequently used it and had resided in the neighborhood. The evidence introduced by the plaintiff disclosed that his agent had stopped to look and listen for trains at a point where he could not see trains near the crossing, and then started and drove directly on, although, under the undisputed evidence, he could by stopping at a point sixteen feet from the track have had a clear view of any train which was within a mile of the crossing. This evidence established the contributory negligence of the plaintiff's agent, and the case is ruled by Central Railroad of New Jersey v. Feller, 84 Pa. 226; Urias v. Penna. R. R. Co., 152. Pa. 326; Myers v. B. & O. R. R. Co., 150 Pa. 386; Corcoran v. Penna. R. R. Co., 203 Pa. 380; Enter v. Penna. R. R. Co., 204 Pa. 497; Blotz v. Railroad Company, 212 Pa. 154; McKahan v. B. & O. R. R. Co., 223 Pa. 1. This case is strikingly similar in its facts to Blotz v. Railroad Company, supra; in that case as in this the driver stopped at a point from which he had a view of the track for a considerable distance, but could not see 500 feet of the track nearest the crossing, and from that point drove on without again stopping to look or listen until he came into collision with the train, although there was a point near the track, in that case fifteen or twenty feet from the track, from which the track might have been seen for several hundred feet, a much less extended view than that which the driver would have had in the present case. It was there held that by stopping at a point from which he could not see a train near the crossing, he was not relieved from all further legal duty of care, and that the question was for the court. “That he exercised no precaution when near the track is manifest from the fact that he could have seen the train and that he was struck by the side of the engine. These circumstances connected with the accident amount to evidence that admits of no conclusion except that he either did not look or that he went on in the presence of manifest danger, and the case comes within the rule established by Carroll v. Penna. R. R. Co., 12 W. N. C. 348.”

The employee of the plaintiff, the only witness who testified that he saw the accident, did not undertake to say that the team had reached the crossing before it was struck by the engine. He testified that when the horses’ heads were eight or nine feet from the track he first saw the train, that the horses reared and jumped towards the track or, as he said in cross-examination, towards the train; that the train ran on to the crossing and the next thing he knew he was out of the surrey in which he had been seated. Undisputed evidence of a number of witnesses established that after the accident the surrey remained standing in the road with its hind wheels almost in the wagon tracks of the public road and the front wheels turned slightly to the eastward, and the only injury to the surrey was that the point of the pole was broken. The horses were both killed, but the body of one was found in the public road and that of the other a few feet to the east of it, both upon the north side of the railroad track. All the evidence for the plaintiff indicated that the horses had run into the side of the train, and this was corroborated by the testimony of the employees of the defendant and the marks found on the side of the tender; baggage car and smoking car of the train. Four absolutely disinterested witnesses testified that immediately after the accident the driver had declared that the horses had taken fright near a point where there was a bend in the public road, about 175 feet from the track, and had run off, that he could not control them and that they ran into the side of the train. The driver, it is true, denied that he had made any such declarations as these, and the case might have had to go to the jury if the evidence produced by the plaintiff had presented a case which did not of itself disclose the contributory negligence of his driver. The cases, however, in which a railroad company can be called upon to pay for runaway teams which dash against the sides of its cars, merely because the trains fail to get over a crossing and out of the way before the runaway horses reach it, must certainty remain exceptional.

The judgment is reversed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Geisenberger v. Geisenberger, Appellant.

      Evidence — Irrelevant evidence — Offer—Rejection.
    If evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence might afterwards be given in conjunction with which it would become relevant; if it would be relevant in conjunction with other facts, the offer ought to be accompanied by an offer to prove those facts at the proper time.
    Argued Oct. 7, 1909.
    Appeal, No. 45, Oct. T., 1909, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 5,216, on verdict for plaintiff in case of Julia Geisenberger v. Ike Geisenberger.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Brégy, J.
    The note was as follows:
    “$1,000 Philadelphia, Pa., Mar. 25, 1902.
    “Sixty days after date I promise to pay to the order of Miss Julia Geisenberger One Thousand Dollars at Lancaster, Pa. Without defalcation, value received.
    “No. X. Due. (Signed) Ike Geisenberger.”
    At the trial the defendant claimed that the note had been paid by his father, Moses Geisenberger, and offered in evidence without more, three checks as follows:
    “Farmers National Bank of Lancaster, Pa. April 7th, 1904, "■ Pay to the order of Julia Geisenberger Two hundred'and sixty-five 95/100 Dollars $265.95.
    “Moses Geisenberger.
    “Indorsed: Julia Geisenberger.”
    “Farmers National Bank of Lancaster, Pa. April 25, 1904, Pay to the order of Julia Geisenberger One hundred Dollars, $100.00/100.
    “Moses Geisenberger.
    “Indorsed: Julia Geisenberger.”

      December 13, 1909:
    “Farmers National Bank of Lancaster, Pa. July 16th, 1904, Pay to the order of Julia Geisenberger Four hundred and twenty-five dollars $425.00/100.
    “ Moses Geisenberger.
    “Indorsed: Julia Geisenberger.”
    The court overruled the offer. Exception and bill sealed.
    Verdict and judgment for plaintiff for $1,294.93. Defendant appealed.

      Error assigned was the rejection of defendant’s offer as above.

      Charles L. Smyth, for appellant.

      Henry P. Brown, for appellee.
   Per Curiam,

The checks referred to in the assignment of error were not on their face admissible as evidence of payment. Nor were they made admissible by any evidence already in or by an offer to follow them by proof of other facts that would make them so. If evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence might afterwards be given in conjunction with which it would become relevant; if it would be relevant in conjunction with other facts, the offer ought to be accompanied by an offer to prove those facts at the proper time: Weidler v. Farmers’ Bank, 11 S. & R 134. We all concur in the conclusion that the offer was properly rejected at the time it was made.

Judgment affirmed.


text:
    Northwest Building & Loan Association, Appellant, v. Godfrey.

      Affidavit of defense — Practice, C. P. — Discharge of rule — Doubtful cases — Appeal.
    An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed on appeal in doubtful and uncertain cases, but only in such as are clear and free of doubt..
    Argued Oct. 8, 1909.
    Appeal, No. 99, Oct. T. 1909, by plaintiff, from order of C. P. No. 1. Phila. Co., Dec. T., 1908, No. 1,564, discharging rule for judgment for want of a sufficient affidavit of defense in case of Northwest Building Loan Association of Philadelphia, Mortgagee, v. Walter A. Godfrey et al., Mortgagors, and Annie M. Godfrey, Real Owner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur building association mortgage.
    The plaintiff’s statement of claim set up default in the payment of interest, premiums and fines, and also default in the production of tax receipts.
    The defendant in her affidavit of defense averred payment of all dues, interest and premiums on the mortgage without any appropriation of the payments, and that the interest on the mortgage had never been in arrears for a period of six months, the time limit provided by the mortgage for foreclosure. She also averred that she had not produced the tax receipt at the time required, because of her illness; that she had paid the taxes before the mortgage was foreclosed, and had subsequently tendered the receipts and offered to pay arrearages.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Joshua R. Morgan, for appellant.

      December 13, 1909:

      John J. Bahilly, with him Wm. M. Hussie, for appellee.
   Per Curiam,

An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed on appeal in doubtful and uncertain cases, but only in such as are clear and free of doubt. Many of the cases supporting this general rule are cited in the opinion of the Supreme Court in the recent case of Wilson v. Bryn Mawr Trust Company, 225 Pa. 143. Viewing the statement of claim and the affidavit of defense in the light of this rule, we are of opinion that the appeal should be dismissed.

Appeal dismissed at the costs of the appellant without prejudice to its right to a trial by jury and a second appeal after final judgment.


text:
    Rice v. Nirdlinger, Appellant.

      Bankruptcy — Principal and surety — Judgment—Foreign attachment.

    Where a foreign attachment is dissolved by the entry of a bond, and subsequently judgment is entered after appearance in the attachment proceedings and three days after bankruptcy proceedings have been instituted against the defendant, and the defendant is discharged in bankruptcy without any steps ever having been taken by the defendant, or by the receiver in bankruptcy, or by the surety in the attachment bond to bring to the attention of the state court the bankruptcy proceedings, the surety will not be relieved from his liability on the attachment bond by reason of the defendant’s discharge in bankruptcy.
    Argued Oct. 12, 1909.
    Appeal, No. 19, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1908, No. 153, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ignatius Rice et al., trading as Rice & Hochster, v. Samuel F. Nirdlinger.
    Before Rice, P. J., Poetee, Henderson, Moeeison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit against a surety on a bond in foreign attachment proceedings.
    Rule for judgment for want of a sufficient affidavit of defense.
    Audenried, J., filed the following opinion:
    This action is on the bond given by Nirdlinger in order to secure the dissolution of a foreign attachment by which the plaintiffs had begun an action against the Hepner Hair Emporium Company. The bond was in the penalty of $2,000. Its condition was that, “if the above named defendant shall be condemned in this action at the suit of the plaintiff he shall satisfy the condemnation money and costs, which if they fail so to do, I undertake to do it for them.” In spite of its incoherency and lack of grammatical precision, this instrument may fairly be interpreted as an undertaking on the part of Nirdlinger to pay to Rice & Hochster whatever sum they might recover in the action wherein the attachment had issued, up to $2,000, which was the limit of his liability. The plaintiffs aver by their statement that on June 25, 1908, they obtained judgment against the Hepner Hair Emporium for $972.73; that they have issued execution for that amount against that corporation; and that the fi. fa. had been returned “nulla bona” by the sheriff; and they, therefore, claim of the plaintiffs the sum of $994.23 (being the amount of their judgment with costs), together with interest thereon from the date of the entry of the judgment.
    The defense set up is that the attachment to secure whose dissolution Nirdlinger gave his bond was levied within four months prior to the day when proceedings in bankruptcy were instituted against the defendant in the attachment; that the judgment referred to in the plaintiffs’ statement of claim was entered three days after the commencement of those proceedings; and that the defendant against which said judgment was obtained has since been discharged by the bankruptcy court.
    We do not think that these facts, whether considered severally or in conjunction, constitute a good defense to the plaintiffs’ claim.

      The discharge in bankruptcy of one for whose debt another has become surety does not release the latter from his obligation. Section 16 of the national bankrupt act provides, that, “The liability of a person who is a co-debtor with, or a guarantor, or, in any manner, a surety for the bankrupt shall not be altered by the discharge of the bankrupt.”
    The fact that the bankrupt proceedings against the Hepner Emporium Company were instituted before the plaintiffs’ judgment was obtained is not fatal to its validity. This court had, before the bankruptcy proceedings were begun, obtained jurisdiction of the persons of both plaintiffs and defendant. It also had jurisdiction of the subject-matter of their controversy. No steps were taken by the Hepner Hair Emporium or by its receiver or by the defendant in this case to bring to our attention the fact that a petition in bankruptcy had been filed against the party first named or to obtain a stay of proceedings. Our duty, therefore, was to proceed with the cause, and whatever steps were taken therein were entirely regular and binding on the parties: Eyster v. Gaff, 91 U. S. 521; Thatcher v. Rockwell, 105 U. S. 467; Dimock v. Copper Co., 117 U. S. 559.
    It may be true that had the attachment against the Hepner Hair Emporium Company been permitted to continue until the defendant therein had been adjudged a bankrupt, it would have become void and there would have been no need for defendant Nirdlinger to give a bond to dissolve it, but this is no reason why the defendant should be relieved of the liability that he assumed. The argument advanced on his behalf, that it is unjust and inequitable to compel him to pay a debt which could by no possibility be collected from the real debtors, on final analysis means nothing more than that the consideration on which he undertook to pay the debt has failed him. But the consideration for his bond has not failed this defendant. He gave his bond in order to secure the dissolution of the plaintiffs’ attachment. The attachment was dissolved. Whether it was worth much or little, the plaintiffs, through Nirdlinger’s intervention, were deprived of that chance of realizing on their claim against the Hepner Hair Emporium Company. That Nirdlinger .miscalculated the value of the chance is entirely unimportant. He knew as much of the possibilities and probabilities in the matter as did the plaintiffs. We do not understand how it can be said that he has any greater equity to be saved from loss than have they. Why, then, should he be relieved? If his equity is no higher than theirs the law will leave both parties where it finds them. If Nirdlinger became surety or bail for the Hepner Hair Emporium Company’s debt without obtaining counter indemnity, he has only his own folly to blame for the predicament in which he finds himself. By entering judgment against him under this rule, we place him in no worse position than that in which the plaintiffs would be left were judgment refused them. Upon paying their claim the defendant will be subrogated to their rights against the bankrupt, the Hepner Hair Emporium Company: Section 57 of the Bankrupt Act.
    Our conclusion on the question before us finds support in King v. Block Amusement Co., 126 App. Div. (N. Y.) 48, where it is held that an attachment issued within four months of the filing of a petition in bankruptcy against the defendant therein and discharged by an undertaking for which the surety takes no security, should not be vacated after the adjudication in bankruptcy so as to discharge the surety.
    The rule for judgment is made absolute.
    In the case of Rice v. Hepner Hair Emporium Company, on a rule to open the judgment, Audenried, J., filed the following opinion:
    This action was begun by a writ of foreign attachment. The plaintiff sued to recover the price of sundry goods sold and delivered to the defendant. The defendant entered an appear.ance. Judgment was taken by the plaintiffs for want of an affidavit of defense. We are now asked to open the judgment and permit a defense to be set up. The defendant does not aver that it did not receive the goods enumerated in the statement of claim or that the prices charged therefor are excessive, or that the bill for them has been paid. The defense on which it is proposed to rely is a discharge obtained by the defendant under the national bankrupt act three months after the judgment was entered against it. It is frankly admitted on behalf of the defendant that the attempt to make use of this defense is intended not so much for its own benefit as in order to help the bail on the bond given to dissolve the attachment with which the action was begun, in his effort to escape from liability on that obligation, suit having been brought thereon against him by the plaintiffs.
    It cannot seriously be contended that the plaintiffs’ judgment is void or irregular. True.it is that it was entered several days after the commencement of the proceedings that led to the defendant’s being adjudicated a bankrupt and that finally resulted in its discharge on September 18, 1908. It is, however, to be observed that before the bankruptcy proceedings were set afoot, this court had already acquired jurisdiction of the persons of both plaintiffs and defendant and of the subject-matter of this controversy, and that no steps were ever taken by the defendant or its receiver to stay proceedings here. The bankrupt law does not of its own force oust the jurisdiction of a state court in an action pending before it immediately upon the filing of a petition in bankruptcy against the defendant. It is the duty of the court to proceed to judgment as between the parties before it unless by some proper pleading it is informed of the change in the defendant’s status. It cannot take judicial notice of the initiation of the proceedings in bankruptcy. Even the adjudication of the defendant’s bankruptcy is without effect to stay the regular course of the administration of justice by a state court as between the parties before it without a timely and proper suggestion thereof by the party affected or his receiver, and such steps as may be taken in such a case before notice of the adjudication is brought to the attention of the court in an orderly manner are' valid and binding on the parties in spite of the bankruptcy: Eyster v. Gaff, 91 U. S. 521; Thatcher v. Rockwell, 105 U. S. 467; Dimock v. Copper Co., 117 U. S. 559.
    The motion to open a judgment regular in all respects is an appeal to our discretion as a court of equity. In support of its application the defendant relies on Wise’s Appeal, 99 Pa. 193, where the Supreme Court, reversing the common pleas, opened a judgment entered after the commencement of proceedings to have the defendant adjudged a bankrupt, but before the adjudication of his bankruptcy, in order that his subsequent discharge might be pleaded in bar of the plaintiff’s claim. The present case, however, differs from that in several important particulars. There the judgment was entered by confession under a warrant of attorney; the defendant never had his day in court; and he knew nothing of the entry of the judgment against him until, after the lapse of almost five years, he was served with a writ of scire facias to revive its lien. In this case the defendant duly appeared, was served with a copy of the plaintiff’s statement and had ample notice of the nature of the proceedings against it. In the case referred to, the defendant, immediately on learning of the judgment against him, applied to the court for leave to put in his defense. Here the defendant, although fully apprised of the state of the litigation, took no steps to stay its course, when bankruptcy proceedings were initiated against it, and for three weeks after its discharge from bankruptcy delayed in taking the present rule. Were an action to be brought against the defendant for the recovery of one of the debts provable against its bankrupt estate, its failure to file an affidavit of defense within fifteen days after having being ruled to do so, would entitle its creditor to a judgment in spite of its discharge. It is not unreasonable to expect applications to open judgment in order to let in the plea, of such a discharge to be made within the same space of time after that defense becomes available. A delay of more than fifteen days in taking the rule to open a judgment against one who has been discharged from bankruptcy should be explained, and, in the absence of a reasonable explanation, is, we think, a good ground for discharging the rule. The delay of the defendant in this case to present his motion is not explained. We are not called on now to determine whether he may not be entitled to a stay of execution on the judgment.
    Aside from the- question of laches, however, there is another reason why the court is disinclined to entertain the defendant’s application. Whether the merit of a defense based on a' discharge in bankruptcy be great or little, as against a just debt,. the admitted purpose for making use of it in this case is entitled to no favor whatever. The bankrupt laws were enacted to help the unfortunate business man to his feet again by relieving him of the overheavy burden of his debts. The commonwealth is interested in the resumption of his activity in trade and extends its help to him for that reason. We are not given to understand that the defendant is endeavoring to escape from its indebtedness to the plaintiffs with any intent of returning to its business. It states its purpose plainly. Its reason for opening the judgment against it is that it may thus release from his liability to pay the plaintiffs’ judgment debt the party who as bail gave bond to dissolve the plaintiffs’ attachment. It was never intended that the bankrupt laws should inure to the advantage of any debtors except those whose property has been made available for the benefit of their creditors and who have submitted themselves to the jurisdiction of the bankrupt court. Section 16, of the bankrupt act, provides expressly that "The liability of a person who is a co-debtor with, or guarantor, or, in any manner, a surety for the bankrupt shall not be altered by the discharge of the bankrupt.” Plainly, the defendant’s surety is not entitled directly or indirectly to the benefit of the bankruptcy legislation. It adds nothing to the equity of his case that the lien of the attachment to secure whose dissolution he became bail for the defendant’s debt was one which, had it continued, would have become void upon the adjudication of the bankruptcy of the defendant: McCombs v. Allen, 82 N. Y. 114; King v. Block Amusement Co., 125 App. Div.- (N. Y.) 922.
    The rule to open the judgment and let the defendant into a defense is discharged.

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

      Arthur S. Arnold, with him Louis E, Leopold, for appellant.

      William A - Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellees.

      December 13, 1909:
   Per Curiam,

The question for decision is very clearly brought out in the two opinions filed by the learned judge of the common pleas, the first rendered upon the rule to open the judgment against the Hepner Hair Emporium Company, and the second upon the rule for judgment for want of a sufficient affidavit of defense in the present case. The order making absolute the latter rule is the one brought up for review in this appeal, and is fully sustained by the opinion of the learned judge, in which we all concur.

Judgment affirmed.


text:
    Philadelphia to use, Appellant, v. Fairhill Railroad Company
    (No. 1).

      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 Oct. 14, 1909.
    Appeal, No. 210, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1905, No. 1,390, M. L. D. making absolute rule to strike off municipal lien for paving in case of City of Philadelphia to use of The Vulcanite Paving Company v. Fairhill Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias on municipal claim for paving.

      Error assigned was order making absolute rule to strike off the lien.

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

      E. J: Sellers, of Sellers & Rhoads, for appellees.

      December 13, 1909:
   Per Curiam,

The counsel for the appellant frankly concede that the question involved in this appeal was decided by this court in Philadelphia v. Philadelphia & Reading Railroad Company, 38 Pa. Superior Ct. 529. They ask for a reversal of the decision rendered in that case. We have fully reconsidered this question in the light of the able argument of appellant's counsel, but are unable to reach a different conclusion from that reached in the case cited. Nor do we deem it necessary to add anything to the opinion of Judge Porter in that case.

The judgment is affirmed.


text:
    Philadelphia to use, Appellant, v. Fairhill Railroad Company
    (No. 2).
    December 13, 1909:
   Per Curiam,

The judgment is affirmed upon the authority of Philadelphia v. Philadelphia & Reading Railroad Company, 38 Pa. Superior Ct. 529.


text:
    Commonwealth v. Zimmerman, Appellant.

      Criminal law — False pretenses — Indictment—Partnership.
    An indictment charging the defendant with having fraudulently obtained money, stating the amount, by reason of various false statements, all specifically set forth, sufficiently charges the offense of having obtained money by false pretenses, although it is further charged that by reason' of the same false statements the defendant induced the prosecutor to enter into a partnership with him, there being nothing in the indictment to show that the moneys were received and applied to partnership assets..
    Argued Oct. 15, 1909.
    Appeal, No. 10, March T., 1910, by defendant, from judgment of Q. S. York Co., Jan. T., 1909, No. 40, on verdict of guilty in case of Commonwealth v. Ernest Zimmerman.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Indictment for obtaining money under false pretenses.
    The indictment was as follows:
    The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of York, upon their respective oaths and informations, do present, that Ernest Zimmerman late of the county aforesaid, yeoman, on July 29, 1908, in the county aforesaid, and within the jurisdiction of this court, devising and intending to cheat and defraud George W. Shewart of his goods, moneys, chattels and property, unlawfully did falsely and designedly pretend to the said George W. Shewart that he the said Ernest Zimmerman was the sole owner of a certain process of making pictures known as porcelain work and that this process was known only to himself. That he had orders from a certain George Hornicher of Johnstown, Pennsylvania, for thirty of these porcelain pictures and that he had on hand 150 pictures in his workroom. That this process of making pictures was without the use of paper of any sort, whereas in truth and in fact the said Ernest Zimmerman was not the sole owner of this process of making pictures, but that the same was in common usage by picture makers; further that he had no orders from George Hornicher of Johnstown, Pennsylvania, and did not have any pictures on hand in his workroom; and, further, the process was not without the use of paper which said pretense and pretenses he, the said Ernest Zimmerman, then and there well knew to be false, by color and means of which said false pretense and pretenses, he, the said Ernest Zimmerman, induced the said George W. Shewart to enter into a partnership with him the said Ernest Zimmerman to make pictures by the process, he the said Ernest Zimmerman described and then and there from the said George W. Shewart unlawfully and fraudulently did obtain the sum of $350, being then and there the property of the said George W. Shewart, with intent to cheat and defraud the said George W. Shewart to the great damage of the said George W. Shewart contrary to the form of the act of the general assembly, etc.
    Verdict of guilty, upon which judgment of sentence was passed.
    On a motion in arrest of judgment, Wanner, J., .filed an opinion the material portion of which was as follows:
    The objection to the form of the bill of indictment cannot be sustained. It is true that the allegation that defendant by his false pretenses induced the prosecutor to enter into a partnership with him, does not constitute the offense intended to be charged. But the succeeding clause, alleging that the defendant by the said false pretenses, also then and there fraudulently obtained from the prosecutor, the sum of 1350, with intent to cheat and defraud him, does define the statutory offense in the proper form. The bill does not allege, that these moneys were obtained for, or applied to, the purposes of said alleged partnership.
    There is no allegation of a partnership in the information at all, nor does the language of the bill sustain the inference on which the objection to the form of the bill is based, viz.: that said money, was gotten for, or went into a partnership then already existing, of Which the prosecutor and the defendant were members.
    A disputed question of fact, it is true, arose at the trial, as to whether these moneys were received and applied to partnership assets, but it was not so alleged in the bill, and no objection to the form of the bill based on that assumption, is therefore a valid one. We are clearly of the opinion that the offense of obtaining money by false pretenses is properly charged, and that the bill of indictment is good.
    The jury found the defendant guilty upon evidence which, if believed by them, justified their verdict, and we must therefore refuse to disturb it.
    Now, to wit, June 21, 1909, the defendant’s motion in arrest of judgment, and for new trial is overruled and refused.

      Error assigned was in overruling defendant’s motion in arrest of judgment based upon the insufficiency of the bill of indictment, and in imposing sentence thereon.
    December 13, 1909:

      Samuel Kurtz, with him II. O. Ruby, for appellant.
    No appearance nor printed brief for appellee.
   Per Curiam,

The judgment is affirmed upon the opinion of the learned judge of the quarter sessions, and the record is remitted to the court of quarter sessions of York county to the end that the sentence be fully carried into effect.


author: Porter, J.,

text:
    Commonwealth v. Soo Hoo Doo, Appellant.

      Criminal law — Keeping disorderly house — Action of proprietor — Evidence — Indictment.
    1. Under an indictment drawn substantially in the language of the Act of March 31, 1860, sec. 42, P. L. 382, charging the defendant with keeping a disorderly house to the encouragement of idleness, gaming, drinking and other misbehavior, it may be shown (1) that gaming, drinking and other misbehavior occurred with the acquiescence of tire proprietor; (2) that the place was kept in such a manner as to encourage such behavior; (3 )that the proprietor participated in the misbehavior; (4) that the misbehavior which was the result of the ill-government of the house was necessarily and directly connected with the offense charged in the indictment; and (6) what was the number and kind of people who visited the house, and what they did when there assembled.
    2. Evidence as to the general reputation of a disorderly house upon the trial of an indictment charging the maintenance of such a nuisance is not admissible. The rule is different, however, as to a bawdyhouse.
    Argued Oct. 4, 1909.
    Appeal, No. 13, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., April T., 1908, No. 116, on verdict for plaintiff in case of Commonwealth v. Soo Hoo Doo.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for keeping a disorderly house. Before Ferris, P. J.
    The opinion of the Superior Court states the case.

      December 13, 1909:
    Verdict of guilty, upon which the defendant was sentenced to pay a fine of $250, and undergo an imprisonment for six months.

      Errors assigned were (1-9) various rulings on evidence, quoting the bill of exceptions; (10-16) various instructions.

      Charles H. Soper, with him Samuel S. Herring, for appellant.
    In the case of disorderly houses, particular acts or states of disorder may be put in evidence to prove a house disorderly; but common reputation or complaint among neighbors is not for this purpose admissible: Commonwealth v. Stewart, 1 S. & R. 342; Commonwealth v. Murr, 7 Pa. Superior Ct. 391; State v. Foley, 45 N. H. 466; People v. Mauch, 24 How. Pr. (N. Y.) 276.

      John H, Dando, assistant district attorney, with him Abram Salsburg, district attorney, for appellee.
   Opinion by

Porter, J.,

The indictment upon which the defendant was tried, charged that: he “did unlawfully keep and maintain a common, ill-governed and disorderly house and place, to the encouragement of idleness, gaming, drinking and other misbehavior, to the common nuisance and disturbance of the neighborhood and orderly citizens, contrary to the form of the act of General Assembly,” etc. The indictment was drawn substantially in the language of the Act of March 31, 1860, sec. 42, P. L. 382. That section of the statute did not create a new offense but merely defined a misdemeanor long known to the common law, and fixed the punishment for the same. Under such an indictment it is always competent to show that, with the acquiescence of the proprietor, gaming, drinking and other misbehavior occur and that the place is kept in such a manner as to encourage such behavior. The misbehavior which is encouraged by the keeping of the disorderly place may in itself constitute a crime. When the evidence discloses that the proprietor of the house sometimes participates in the misbehavior, that evidence is not to be excluded upon the ground that it shows an independent offense, for the misdemeanor of keeping a disorderly house is the habitual maintenance of a place to the encouragement of these very unlawful acts. The misbehavior which is the result of the ill-government of the house is necessarily and directly connected with the offense charged in the. indictment. In cases of this kind evidence as to the number and kind of people who visit the house and what they do when there assembled is properly admissible. The first seven specifications of error are dismissed.

The court below permitted counsel for the prosecution to ask witnesses the following questions: “Q. As to the government of the house, the order of the house, encouragement of idleness, gaming, drinking and other misbehavior, what is its reputation, good or bad?” And, “Q. From the speech of the people in that neighborhood what is the reputation of that house along the lines that I have asked you?” Objections to both of these questions were overruled and exceptions noted for the defendant. The evidence admitted under these exceptions was to the effect that the general reputation of the house, with regard to the subject of inquiry, was bad. The admission of this testimony is the subject of the eighth and ninth specifications of error. That evidence as to the general reputation of a disorderly house, upon the trial of an indictment charging the maintenance of such a nuisance, is not admissible was definitely decided in Commonwealth v. Stewart, 1 S. & It. 342, and that rule has not since been modified. The rule is different when the indictment charges the keeping of a bawdyhouse and the reasons for that difference are stated in Commonwealth v. Murr, 7 Pa. Superior Ct. 391. The arguments submitted on behalf of the commonwealth that the testimony in question was elicited in the cross-examination of the witnesses of the defendant and that that cross-examination was rendered proper by the manner in which counsel for the defendant had interrogated those witnesses finds no support in the record. The witnesses had been interrogated in chief as to what they themselves had seen about the house and as to whether they had heard any noises or been disturbed. They had not been asked, in chief, nor had they testified, as to the general reputation of the house in the broad terms of the questions by the prosecution, which elicited the evidence the admission of which is assigned for error. The eighth and ninth specifications of error are sustained.

While some of the excerpts from the charge, wrested from the context which explained and qualified them, might be the subject of criticism, the charge taken as a whole clearly defined the offense for which the defendant was being tried and fairly stated the facts which it was incumbent upon the commonwealth to establish in order to support the indictment. Upon this branch, of the case it seems only necessary to quote that part of the charge which is the subject of the twelfth specification of error: the court said, “If he kept a place which was the familiar resort of prostitutes and male bawds, a place where fighting was of frequent occurrence, a place where people came sober and went away drunk, a place where men came and met prostitutes and took them away in cabs, a place where noises occurred such as to be heard on East Market street, the noises consisting of profane, vulgar and vile language; if you believe that this defendant kept such a place as that, we say to you that under this act of assembly you will be justified in finding a verdict of guilty.” The jury were clearly given to understand that they were to find the facts, under the evidence. If they found the facts to be as above stated, then there could be no question that it was for them to say whether the house was disorderly and a nuisance under the act of assembly. If such a state of facts would not justify a finding that the defendant kept a disorderly house, it would be hard to imagine a case in which there could be a conviction upon such a charge. The evidence was certainly sufficient, if believed, to convince a jury beyond all doubt that the defendant so governed his house as to encourage idleness, gaming, drinking and almost all other kinds of misbehavior; that the frequenters of the place very often used profane and vile language in tones so loud as to be plainly audible upon the neighboring streets and that the house was the common meeting place of those engaged in immoral pursuits; an exchange for vice. The request of the defendant for binding instructions was properly refused.

The judgment is reversed with a new venire.


author: Beaver, J.,

text:
    Smith, Appellant, v. Weaver.

      Contract — Bond—Sufficiency of bond.

    1. Where one party agrees to deliver to another party a bond satisfactory to the latter for the performance of the contract, the expression of dissatisfaction by the latter with the bond tendered, is sufficient without more to excuse the latter from the performance of the condition of his contract, if there is no evidence that the rejection of the bond was due to an unreasonable or capricious motive.
    2. The sufficiency of the bond tendered in such a case cannot be shown by the mere ex parte affidavit of the surety of the bond.
    Argued Oct. 5, 1909.
    Appeal, No. 240, Oct. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1893, No. 589, refusing to take off nonsuit in case of Edward W. Smith v. Francis D. Weaver and George Young.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit upon a bond. Before Wiltbank, J.
    The terms of the bond are set forth in the opinion of the Superior Court.
    At the trial the court refused to receive in evidence an affidavit of the surety in the bonds tendered by the plaintiff to the defendant. The evidence showed that the defendant had expressed dissatisfaction with the bonds, and had refused to accept them. There was no evidence that he did this capriciously.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) rejection of the affidavit, and (2) refusal to take off nonsuit.

      L. W. Baxter, for appellant.
    The words “good and sufficient surety satisfactory to the said Weaver,” did not mean such a surety as said Weaver might unreasonably or capriciously require, but only such surety as he might reasonably and in good faith require; and if the bonds were of such a character, then the defendant could only refuse to accept them, when acting in good faith, and not from mere caprice, when after a bona fide examination he had ascertained, that they were really not satisfactory to him. As these were questions of fact to be determined by the jury the learned court erred in entering a non-suit: Water Co. v. Waymart Borough, 4 Pa. Superior Ct. 211; Zaleski v. Clark, 44 Conn, 218; Singerly v. Thayer, 108 Pa. 291; School Fur. Co. v. Warsaw School District, 130 Pa. 76; Howard v. Smedley, 140 Pa. 81; Boiler Works v. Schnader, 155 Pa. 394; Meacham v. Gardner, 27 Pa. Superior Ct. 296; McNally v. Jenkinson, 35 Pa. Superior Ct. 288; Gill v. Tolan, 18 W. N. C. 50; Wallace v. R. R. Co., 138 Pa. 168; Cutter v. Cutter, 48 N. Y. Super. Ct. 470; Wetterwoulgh v. Knickerbocker Assn., 2 Bosworth (N. Y.), 381.
    December 13, 1909:

      A. S. L. Shields, for appellees
    There was no proof that bonds.“with good and sufficient surety satisfactory to the said Francis D. Weaver” were tendered: Germantown Dairy Co. v. McCallum, 223 Pa. 554; Piper v. White, 56 Pa. 90; Howard v. Smedley, 140 Pa. 81; Nelson v. Von Bonnhorst, 29 Pa. 352; McGrath v. Brown, 66 Barb. (N. Y.) 481; Boiler Works v. Schnader, 155 Pa. 394; Singerly v. Thayer, 108 Pa. 291; McCarren v. McNulty, 73 Mass. 139.
   Opinion by

Beaver, J.,

The nonsuit entered in this case, the refusal to take off which is the principal assignment of error, is justified upon either of two separate grounds: First, there is no evidence of a breach of the condition in the bond for which recovery is sought. . Evidence of the breach is absolutely necessary to recovery. Second, the contract, for the execution of which the bond in suit was given, was based upon a condition precedent which was not complied with. The condition of the bond was for permission of the plaintiff to make a transfer of certain engraved copper plates of maps of the United States, Central America, etc., engraved thereon, but it was stipulated in the condition of the bond: “Provided that the said transfer shall be made at the printing establishment of the Avil Printing Company, 3941-3943 Market street, Phila., and provided that the said Edward ’ W. Smith shall tender to the said Francis D. Weaver before obtaining possession of the said plates for the purpose of making the said transfer a bond in the penal sum of fifteen hundred dollars ($1,500.00) and a good and sufficient surety, satisfactory to the said Francis D. Weaver, conditioned upon the redelivery of the said plates to the said Francis D. Weaver, his executors, administrators or assigns, in as good a condition as when received, within four weeks after they shall be received by the said Edward W. Smith, but in no event after December 31, 1891, and further conditioned that the said Edward W. Smith shall take only one perfect transfer from the said plates, and provided further that the said Edward W. Smith shall tender to the said Francis D. Weaver before obtaining posession of the said plates a further bond in the penal sum of five hundred dollars ($500.00), with a good and sufficient surety satisfactory to the said Francis D. Weaver, conditioned that the said Edward W. Smith shall not directly or indirectly sell any maps printed from said transfer under the price of two dollars until after December 31st, 1892, then this obligation to be void, or else to be and remain in full force and virtue.”

The plaintiff was called as a witness, proved the bond upon which suit was brought and identified certain bonds which he alleged were tendered by him to Mr. Weaver, the defendant, on December 31, 1891. He was asked by the court: “Q. Did Weaver find the sureties satisfactory? A. No, sir. Q. He said they were not? A. He said they were not satisfactory.” This was the only testimony in regard to the matter, and in the absence of anything further, inasmuch as Weaver’s bond to the plaintiff provides that the sureties in the bonds tendered by the plaintiff to him were to be “with a good and sufficient surety satisfactory to the said Francis D. Weaver,” his expression of dissatisfaction was sufficient without more' to excuse him from the performance of the condition of his bond to the' plaintiff, there being no evidence of any kind of unreasonableness or caprice on the part of the defendant.

It is scarcely necessary to cite authorities for a proposition so well settled in numerous cases. They may be found, however, in Nelson v. Von Bonnhorst, 29 Pa. 352; Singerly v. Thayer, 108 Pa. 291; Howard v. Smedley, 140 Pa. 81; Boiler Works v. Schnader, 155 Pa. 394; Delahunty Dyeing Machine Co. v. Pennsylvania Knitting Mills, 19 Pa. Superior Ct. 501; Lippincott’s Estate, 21 Pa. Superior Ct. 214; Carbon Spring Ice Co. v. Hawk, 29 Pa. Superior Ct. 13. See also notes in Church v. Shanklin, 17 L. R. A. 207, and Pistel v. Imperial Mut. Life Ins. Co. of America, 43 L. R. A. 219.

The plaintiff attempted to show that the bonds tendered by him to Weaver were of such a character that they ought to have been satisfactory, and for this purpose offered the ex parte affidavit of the surety upon the bonds, which was, upon objection, rejected by the court. This was merely an ex parte affidavit, clearly not evidence. The surety could have been called and would have thereby subjected himself to a cross-examination by the defendant. The offer was properly rejected for the reason that it was not the best evidence of the facts which the plaintiff endeavored to establish thereby. It is difficult to see how the plaintiff was injured by its rejection for, if admitted, it would have disclosed a state of facts which would have justified any judicious counselor in advising Weaver, the defendant, not to accept the bonds tendered by the plaintiff, the affidavit showing that the property of the defendant was incumbered beyond the half of its assessed value.

The dissatisfaction of the defendant in regard to the surety was not capricious, and no effort was made to show caprice on his part in rejecting the bonds tendered by the plaintiff.

Either upon the ground that plaintiff showed no breach of the condition of the bond upon which he sought to recover, or upon his affirmative showing of the dissatisfaction of the defendant, Weaver, with the surety to the bonds which he offered, as a compliance with the condition precedent upon which the bond of the defendant was based, to say nothing of the fact that the bond was tendered on December 31, 1891, the very last day upon which the plates were to be redelivered by the plaintiff to Weaver, the defendant, under their contract) the court below properly entered a compulsory nonsuit.

Judgment affirmed.


text:
    Bergdoll v. Pitts, Appellant
    (No. 1).

      Taxation — Liability of registered owner — Taxes on real estate— Sheriff’s sale.

    In an action by a purchaser at sheriff’s sale in. foreclosure proceedings to recover from the former registered owner of the land taxes assessed against the land during such ownership, which the plaintiff had been compelled to pay in order to save the property, an affidavit of defense is insufficient which merely avers that another person was the real owner of the land without any averment as to how such person became the owner, or if he were trustee, how he became a trustee, or what was the nature of his duties.
    Argued Oct. 8, 1909.
    Appeal, No. 85, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,414, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Berg-doll, Guardian of Grover C. A. Bergdoll, v. Lillie H. Pitts.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover taxes paid by plaintiff on real estate.
    Rule for judgment for want of a sufficient affidavit of defense.
    Audenried, J., filed the following opinion:
    The plaintiff foreclosed a mortgage that he held on five lots of ground in the city of Philadelphia and bought in the property at the sheriff’s sale. The price realized by said sale failed to pay the tax claims against the property. In order to protect himself the plaintiff after getting title to the property paid the tax claims against it. Among them were five claims for $73.33 each, assessed against the several lots for the year 1903 in the name of Lillie H. Pitts, who, it is averred, held title thereto from October 11, 1902, to December 22, 1903, her deed therefor being duly registered and recorded. This action was brought to recover from. Lillie H. Pitts the sum of $366.65 thus paid by the plaintiff for 1903’s taxes on his lots.

      The fact averred by the affidavit that the defendant never owned or held record title to No. 354 North Sixty-second street, one of the properties mentioned in the statement of claim, and that no taxes were assessed thereon against her for the year 1903, constitutes a good defense to the extent of $73.33, the amount claimed in respect to the plaintiff’s payment of taxes on that property.
    As a defense to the remainder of the plaintiff’s claim the affidavit sets up that although the defendant held the record title to the four other mortgaged properties during the period above mentioned, and although the taxes thereon for 1903 wefe assessed against them in her name, she was never their real owner and never received any income or benefit from them; that their true owner during the time she held their legal title was Robert A. Pitts, who absolutely controlled said properties and collected and enjoyed the rents therefrom; that the plaintiff knew that Robert A. Pitts was the real owner of the four properties and recognized him as such by sending to him the bills for the mortgage interest as it fell due, and acknowledging the receipt of the payments of that interest as made by the said Robert A. Pitts, whom he advised to appropriate the rents of the property to such payments rather than to the payment of taxes for the year 1903, which the plaintiff knew were not then paid.
    We are of the opinion that the facts thus averred fall short of constituting a sufficient defense to the remainder of the plaintiff’s claim.
    The party who at law is responsible for the payment of taxes assessed on real estate is its real owner. Prima facie he who holds a deed to the land, which has been registered and recorded, is the real owner. The fact that he is out of possession and that another is enjoying the rents, issues and profits of the property is no reason why its real owner should escape the burden of paying the taxes on it.
    A bare trustee, who holds the record title to land for another, would not, of course, be liable for the payment of the taxes on it; but it lies on such a person, if he should escape taxation, to show exactly what his relation to the property is and demonstrate that he has no personal interest in it. Failing in this, his responsibility for the taxes becomes fixed.
    The right of the mortgagee to maintain an action for the recovery of taxes paid by him under such circumstances as those present in this case arises by way of subrogation. He is subrogated to the right of the city to look to the terre-tenant in whose name the taxes were assessed for their payment. Consequently, no defense is valid against him that would not be effective to bar the city’s claim.
    It would be no defense to the claim of the city for taxes assessed against the holder of the record title of a property to say, “I am a mere naked trustee of this land;” and such a defense could not avail against a claim for reimbursement by the mortgagee who, to protect his interest after buying in the mortgaged property at a foreclosure sale, has paid the taxes owing thereon: Neilson v. Equitable Trust Co., 18 Pa. Superior Ct. 635. There must be given in either case a full explanation of that defendant’s connection with the property. The precise terms of the trust on which he claims to hold the land must be shown. This is required in order that the court may determine whether or not the defendant is as bare of personal interest in the property as he asserts.
    For the same reason, both in proceedings instituted by the city and in . an action by one standing in the position of this, plaintiff, the defendant who admits that at the time of the assessment of the taxes sued for he was the holder of a deed for the land, which was duly registered and recorded,’ must do more than say, “ I was not the real owner when the taxes were assessed, this other man was.” Whether or not he or the other man really owned the land is to be determined by the court upon the facts of the case. If, as in the matter before us, the affidavit of defense fails to disclose the facts on which such- a conclusion might be predicted, it is insufficient.
    The averments that the defendant has never received income or other benefits from the property whose title she held, and that the income therefrom was received by Robert A. Pitts are by no means inconsistent with real ownership in the property on her part. It may well be that although the owner she was illegally evicted from the properties by Robert A. Pitts.
    The fact that the plaintiff knew that the defendant was never the real owner of four of the mortgaged properties is no bar to his present claim, since his knowledge on that subject would not have precluded the right of the city to demand of her payment of the taxes assessed thereon for 1903, and he now stands with respect thereto in the city’s shoes.
    For the same reason, the plaintiff’s recognition of Robert A. Pitts as the owner of the property by sending him bills for mortgage interest and by receiving interest payments from him amounts to nothing as a defense here.
    The averment that the plaintiff, having at the time knowledge of the fact that the taxes for 1903 had not yet been paid, advised Robert A. Pitts that he preferred him to appropriate the rents received from the properties to the payment of the mortgage interest instead of the payment of those taxes does not stand in the plaintiff’s way to subrogation to the city’s claim against the defendant. It is not averred that Robert A. Pitts acted on this suggestion by appropriating the income from the mortgaged properties to the payment on the interest on the plaintiff’s mortgage, or that in the absence of the suggestion he would have applied that income to paying those taxes. Even if the plaintiff received the interest on mortgage from Robert A. Pitts, whether as the owner of the mortgaged properties or otherwise, no matter whether the source from which the latter derived the money was the rental of the properties or not, we do not see how that fact can be urged by the defendant against the plaintiff’s subrogation to the city’s right against her. Such interest payments by Robert A. Pitts were in the defendant’s relief, and the plaintiff did her no wrong by taking from him what she otherwise would have paid herself.
    The plaintiff’s rule for judgment for $293.32, with interest from October 20, 1908, will be made absolute; and judgment will be entered in favor of the plaintiff and against the defendant for $301.14,

      December 13, 1909:

      Error assigned was the order of the court.

      William A. Gray, for appellants.
    It has always been the policy of our law to make the real owner of a property personally responsible for the payment of taxes assessed thereon, and that it was plainly the intention of the legislature to make the real owner personally responsible is shown by the cases of King v. Mt. Vernon Bldg. Assn., 106 Pa. 165; Caldwell v. Moore, 11 Pa. 58; Wallace’s Est., 59 Pa. 401; Rawle v. Renshaw, 15 Pa. Superior Ct. 488.

      William H. Peace, for appellee.
    If there was no question as to the real ownership of the mortgaged premises at the time of the assessment of the tax, the defendant’s liability over to the plaintiff under the facts would be undoubted under the following decisions: Caldwell v. Moore, 11 Pa. 58; Hogg v. Longstreth, 97 Pa. 255; King v. Mt. Vernon Bldg. Assn., 106 Pa. 165; Bank v. Shoemaker, 13 W. N. C. 255; Landreth v. McCaffrey, 17 Pa. Superior Ct. 272, 276; Theobald v. Sylvester, 27 Pa. Superior Ct. 362.
    Since the defendant (though admitting she held the legal title by deed absolute in her name and duly registered and recorded covering a period prior to the assessment of the tax in question) has set up she was not the real owner, but that Robert A. Pitts was, she having taken a deed, however, from one Farris, it becomes important (and plaintiff contends necessary) she show more in her affidavit than she has, namely, what was the real relation she sustained to the title: Neilson v. Trust Co., 18 Pa. Superior Ct. 635.
   Opinion by

Porter, J.,

The court below held the affidavit of defense to be insufficient as to a part of the claim of the plaintiff, and for such part entered judgment against the defendant. The opinion of Judge Audenried, which appears in the report of this case, fully vindicates the conclusion at which he arrived, and renders it unnecessary for us to refer to all the details of the allegations of defense.

The affidavit of defense does not deny that, at the time the taxes in question were assessed and became a charge upon the land, the title as registered and recorded showed the defendant to be the owner of an absolute estate in fee simple in the said land; it is not denied that the taxes were properly assessed, nor that the plaintiff, after he had purchased the property at a sale by the sheriff under proceedings upon his mortgage, was compelled to pay the taxes, in order to save the property.- These facts established a prima facie right in the plaintiff to be reimbursed by the defendant for the payment so made; Theobald v. Sylvester, 27 Pa. Superior Ct. 362; Frank v. McCrossin, 33 Pa. Superior Ct. 93. The affidavit of defense admits that the title to the property was placed in the name of the defendant on October 28, 1902, “by deed from Thomas F. Farris, as set forth in the plaintiff’s statement of claim.” The defendant, it is true, attempts-to nullify the admission, which the record compelled her to make, by coupling it with the averment, “that at that time and at all times thereafter until the said properties were sold at sheriff’s sale, the said properties were owned and controlled by Robert A. Pitts, and that this defendant had no interest in the same.” The affidavit contains no averment that there was any defect in the title which had been conveyed to the defendant, nor that the defendant had been ousted from the property by any superior title, nor that the defendant had conveyed to any other person the title which had been vested in her. The affidavit admits that the title had been conveyed to her by a deed duly registered and recorded, and from the facts thus admitted to be true the presumption that the defendant owned the property arises. The attempt to set up a defense amounts to nothing more than an assertion that although the title to the property was in.the. defendant, the real owner was Robert A. Pitts. Under the facts averred in the statement and in the affidavit of defense admitted to be true, the assertion that the real owner of the property was Robert A. Pitts, amounted to nothing more than a conclusion of law. If there was a defect in the title under which defendant held it was incumbent upon her to aver that defect.in her affidayit; if she was a mere trustee for Robert A. Pitts, it was incumbent upon her to state in her affidavit the terms of the trust and how the trust arose, or if upon the same day that she received her deed she had executed a .conveyance of the property to Robert A. Pitts, which remained unrecorded, it was incumbent upon her to aver that fact: Neilson v. Equitable Trust Co., 18 Pa. Superior Ct. 635. The learned counsel for the appellant argues in his brief that the assertion of the affidavit of defense that the real owner of the property was Robert A. Pitts was sufficient to establish a trusteeship; that it was the equivalent of asserting that the defendant held the title as a trustee for Robert A. Pitts. Had the affidavit in terms averred that the defendant was a mere trustee, that averment would have been insufficient, unless she had set forth in the affidavit how the trust estate was created, the nature of her duties as trustee, and the facts necessary to enable the court to determine upon whom the law imposed the duty to pay the taxes: Landreth v. McCaffrey (No. 2), 17 Pa. Superior Ct. 276. The affidavit of defense was vague, evasive and insufficient.

The judgment is affirmed and the appeal dismissed.

Henderson and Morrison, JJ., dissent.


text:
    Bergdoll v. Pitts, Appellant
    (No. 2).
    Argued Oct. 8, 1909.
    December 13, 1909:
    Appeal, No. 83, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,409, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis J. Berg-doll v. Lillie H. Pitts.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Porter, J.,

The affidavit of defense, which in this case the court below held to be insufficient, is in all respects similar to that which we have considered in the case of Charles A. Bergdoll, guardian, v. Lillie H. Pitts, in which an opinion has this day been filed, ante, p. 257. We in that case held the affidavit to be insufficient and, for the reasons in that opinion stated, the specifications of error in this appeal are overruled.

The judgment is affirmed and the appeal dismissed.

Henderson and Morrison, JJ., dissent.


text:
    Bergdoll v. Pitts, Appellant
    (No. 3).
    Argued Oct. 8, 1909.
    December 13, 1909:
    Appeal, No. 84, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,411, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis J. Berg-doll, Guardian of Elizabeth B. Bergdoll, v. Lillie H. Pitts.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Porter, J.,

This record presents only the same questions which were considered in the appeal of this defendant, in the case of Charles A. Bergdoll, guardian, v. Lillie H. Pitts, in which an opinion has this day been filed, ante, p. 257. The specifications of error are overruled for the reasons stated in that opinion.

The judgment is affirmed and the appeal dismissed.

Henderson and Morrison, JJ., dissent.


text:
    Philadelphia to use v. DeHaven, Appellant.

      Municipal liens — Remedy—Assumpsit—Act of April 4, 1907, P. L. 40.
    The Act of April 4, 1907, P. L. 40, providing for the collection of municipal claims by an action of assumpsit is not retrospective, and does not apply to cases in which the improvement had been completed and assessment made prior to the approval of the act.
    Argued Oct. 13, 1909.
    December 13, 1909:
    Appeal, No. 153, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 610, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia to use of Barber Asphalt Paving Company v. Holstein DeHaven.
    Before Rice, P, J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover a municipal claim for paving.
    Rule for judgment for want of a sufficient affidavit of defense.

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

      Charles H. Downing, for appellant.

      Walter Biddle Saul, with him E. O. Michener, for appellee.
   Opinion by

Porter, J.,

The plaintiff brought this action of assumpsit to recover of the defendant the amount of a municipal claim which had been assessed against his property for paving Sixty-second street, in the city of Philadelphia. The statement filed by the plaintiff disclosed that the improvement was completed and the assessment against the property of the defendant made on October 13, 1906, and the plaintiff asserted the right to recover, in this form of action, by virtue of the provisions of the Act of April 4, 1907, P. L. 40. The affidavit of defense averred that the paving for which the plaintiff sought to charge the defendant in this personal action had been completed on October 13, 1906, and that the assessment for the same had on that day been made, as averred in plaintiff’s statement, and further averred that the defendant was not personally liable for this claim because the act of April 4,1907, upon which the plaintiff relied to sustain his action, had not been passed until after the paving had been completed and the assessment made. The court below entered judgment in favor of the plaintiff for want of a sufficient affidavit of defense,- and the defendant appeals.

The only question raised by the specifications of error is whether the Act of April 4,1907, P. L. 40, is to be so construed as to give it a retrospective effect, and thus made to impose a personal liability upon owners of property when public improvements had been completed and assessments therefor made prior to the enactment of the statute. This question was considered in the case of Barnesboro Borough v. Speice, 40 Pa. Superior Ct., 609. We held in that case that the statute should not be given a retrospective effect, and that it did not apply to cases in which the improvement had been completed and benefits assessed prior to the approval of the act. For the reasons stated in the opinion referred to the specifications of error must be sustained.

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


text:
    Buffalo, Rochester & Pittsburg Railway Company, Appellant, v. Union Township.
    Practice, C. P. — Case stated — Judgment.
    A case stated which does not show the cause of action, or the form and substance of the judgment to be entered, will be quashed.
    Argued Oct. 29, 1909.
    Appeal, No. 158, Oct. T., 1908, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1909, No. 243, for defendants on case stated in suit of Buffalo,. Rochester & Pittsburg Railway Company v. Supervisors and Treasurer of. Union Township and Commissioners of Clear-field County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ;
    Proceedings quashed.
    Case stated to determine liability for tax.
    The case stated was not set forth in appellant’s paper-book, but the docket entries, under the caption of the case, were as follows:
    1. Plaintiff, a corporation duly organized and existing under the laws of the state of New York and regularly doing business in this state, controls and operates a line of railroad running through Union township, Clearfield county, Pennsylvania.
    2. Plaintiff is the owner of a piece of land along its right of way in said township.
    3. A local .tax has been assessed against plaintiff, which includes work road tax and cash road tax.
    4. The work road tax and cash road tax for the years 1907 and 1908, includes a per capita tax of $1.00 for each of these years.
    5. The plaintiff does not have its principal office or place of business in said township.
    If, upon these facts, the court is of the opinion that the plaintiff is not liable for the per capita tax, then judgment to be entered for the plaintiff. If the court is of opinion upon these facts, that the plaintiff is liable for the per capita tax, then judgment to be entered for the defendant.
    On argument list,
    November 26, 1908, opinion and decree filed.
    Judgment entered for defendants in the sum of $2.00, for years 1907 and 1908, with costs.
    Exception noted for plaintiff and bill sealed.
    Debt, $2.00.
    Filed and interest from November 26, 1908.
    Judgment for defendants.

      Error assigned was. in entering judgment for defendant on the case stated.

      December 13, 1909:

      Hazard Alex. Murray, with him C. H. McCauley, Thomas H. Murray and James P. O’Laughlin, for appellants.

      Singleton Bell, with him Howard B. Hartsmck, for appellees.
   Per Curiam,

The record as printed in the appellant’s paper-book does not show the form of action, and only inferentially that an action was pending. What is more important, the case stated does not show the cause of action upon which the plaintiff bases its claim to recover in an action at law. Whether it claims to recover a debt due it or damages for an injury committed against it, and what is the amount of the debt or damages it is entitled to, if it is entitled to recover at all, are questions upon which the case stated furnishes no direct information or basis of calculation. While as we said, following numerous cases, in Rockwell v. Warren County, 34 Pa. Superior Ct. 581, mere inartificiality in the drawing of a case stated is not sufficient to set it aside, failure to inform the court respecting the form and substance of the judgment to be entered, and to specifically agree that it shall be entered, is fatal. In the present case it was stipulated that the court should enter judgment for the plaintiff or the defendant accordingly as it should determine the legal question one way or the other. But what judgment was it to enter? As was said in Berks County v. Jones, 21 Pa. 413: “What judgment could we give for the plaintiff if our opinion should be different from the court below?” Upon this subject the case stated contains no express stipulation, and there is no method by which the form and nature of the judgment can be determined. In every essential particular the case stated is like that commented on in Rockwell v. Warren County, 34 Pa. Superior Ct., 581, to which we refer for citation of pertinent authorities. For the reasons there given, and following the practice in analogous cases, we conclude that the case stated and all proceedings under it should be quashed.

The case stated and all proceedings under it are quashed and set aside.


author: Morrison, J.,

text:
    Dungan, Hood & Company, Incorporated, v. Philadelphia & Reading Railway Company.

      Carriers — Common carriers — Railroad—Warehouse company — Principal and agent.

    1. In an action by a shipper against a railroad company to recover for goods lost, an agreement by a warehouse company which had acted as an agent of the shipper to procure the carriage to relieve the railroad company for loss occurring where goods were loaded by the warehouse company's employees, is inadmissible in evidence where there is no evidence of any authority in the warehouse company to make such a contract in relief of the railway company at the expense of the shipper.

      Practice, C. P. — Trial—Charge—Answers to points.

      2. A trial judge commits no error in declining a point without reading it to the jury, where he has sufficiently covered the matter of the point in his general charge.
    Argued Oct. 6, 1909.
    Appeal, No. 251, Oct. T., 1908, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 2,820, on verdict for plaintiff in case of Dungan, Hood & Company, Incorporated, v. Philadelphia & Reading Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover the value of two bales of goatskins. Before Ferguson, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial one of the defendant’s witnesses was asked this question:
    “Q. Will you state what, if any, agreement you had with them with reference to the delivery of carload lots from their warehouse prior to June, 1902?”
    Counsel for plaintiff objects and asks for an offer of proof.
    The Court: What do you propose to show?
    Mr. Lamb: I offer to prove a verbal contract between the warehouse company as the agent of the shippers to make delivery to the defendant company, that the goods in carload lots should be loaded into the cars by the warehouse company’s employees, and that the latter company, as shippers, should be responsible for any shortage.
    December 13, 1909:
    The Court: Do you propose to follow it up by showing that this was communicated to Dungan, Hood & Co.?
    Mr. Lamb: No, sir.
    Objected to. Objection sustained. Exception allowed for defendant.
    Verdict and judgment for plaintiff for $897.07. Defendant appealed.

      Errors assigned amongst others were (1) rulings on evidence, quoting the bill of exceptions; (2, 3, 4) answers to various points; (5) that the charge was inadequate.

      John G. Lamb, for appellant.
    The warehousing company was undoubtedly the agent of the appellee to make this shipment. As such agent they had power to make any reasonable terms with the carrying company in regard to it, and such agreement binds their principals, though they have no actual knowledge of it: Chouteaux v. Leech & Co., 18 Pa. 224.

      James Wilson Bayard, with him John G. Johnson, for appellee.
   Opinion by

Morrison, J.,

In June, 1902, the appellee had in the possession of the Front Street Warehouse Company in Philadelphia a number of bales of goatskins. During that month the officers of the storage warehouse were notified by the appellee to ship to them at their place of business. No. 2100 North American street, 116 bales of goatskins by the Philadelphia & Reading Railway. In pursuance of said request, the said railway company, on the morning of June 19, 1902, placed upon the siding of the warehouse company the two empty cars asked for, The cars were closed having a door upon each side.

The employees of the warehouse company loaded these two cars with goatskins, in bales* and one of their employees filléd out a bill of lading, reciting that these two cars were loaded with “ 116 bales goatskins.” The numbers of the cars were given. The manager of the warehouse company testified that they first loaded the skins into the cars and then counted the bales and that there were 116 bales. After the cars were loaded, the bill of lading and the shipping order, both of which were filled up by an employee of the warehouse company, were taken by him to the office of the appellant, and the bill of lading was signed by an agent of the appellant and handed back to the employee of the warehouse company, the appellant company retaining the shipping order. When the bales of skins were delivered by the appellant company to the appellee, on June 20,1902, there were only 114 bales of skins, the shortage being two bales of the conceded value of $649.11. The verdict for appellee was for that amount and interest.

To meet the appellee’s case, which under its evidence appeared as above stated, the appellant presented considerable testimony of a negative character. But there was a serious break in the continuity of this evidence. It appeared that the cars containing the skins were moved by the appellant’s servants on the morning of June 19 to the Berks street yards, but the skins were not delivered to the appellee till the morning of the 20th. And there was an item of evidence from which the jury could infer that the seals of the cars were tampered with on the night of June 19 or the morning of the 20th before the bales of skins were delivered to the appellee. Under all of the evidence, the case was for the jury, and we think it was fairly submitted to them by the learned court below.

The first assignment of error relates to an attempt by the appellant to prove that it had an agreement with the warehouse company whereby that company agreed to be responsible for any loss occurring where goods were loaded by its employees into the appellant’s cars. The court rejected this evidence. There is no evidence of any authority in the warehouse company, and no such authority can be implied, to relieve the appellant, a common carrier, from liability to the shipper for loss of goods or damages to them while in the custody of the carrier. At most, appellant’s offer would only show or tend to show that in case of a loss as above indicated, the carrier might look to the warehouse company. The warehouse company was agent of appellee to procure a contract of carriage, not itself to assume the carrier’s liabilities. The law fixes the liability of common carriers, and surely the shipper can rely on that liability unless, by himself or his duly authorized agent, he has agreed not to look to the carrier for his damages in case of a loss. The first assignment is not sustained.

The second assignment (first point) does not disclose reversible error. The point was declined, without reading it to the jury, because there was no controversy over the fact that the warehouse company was the agent of the appellee, and the point merely contains a brief statement of certain of the facts in the case, and it did not contain all of the facts. Moreover, the facts therein recited were not pertinent to the real issue in the case. This was, under the evidence, solely whether or not the appellant received the two missing bales of skins. And the learned court below left this question to the jury in a fair and impartial charge.

The third point (third assignment) was declined without reading it to the jury. In this there is no error. The court had specifically instructed the jury, in the general charge, the question for them to decide was whether or not the appellant received the whole 116 bales of skins. It was not necessary, therefore, to repeat this instruction in a point. The third assignment is not sustained.

The fourth assignment is that the court erred in not giving a binding instruction in favor of the defendant. The learned counsel for appellant has not argued in support of this assignment, and it is very clear to us that the learned court below did not err in holding that the case was for the jury. The fifth assignment is in substance that the court erred in not delivering an adequate charge to the jury. We have already seen that the real question at issue was fairly and adequately presented to the jury, and the learned court in two places in the charge pointedly requested the counsel to call attention to any further point of instruction desired. No exception as to the adequacy of the charge was taken.

The learned counsel for appellant has presented an elaborate argument containing reference to many authorities. His argument and authorities have received careful consideration, but we are not convinced that the learned court below committed reversible error and, therefore, it is unnecessary to comment upon and distinguish the authorities cited.

We have not sustained any of the assignments of error and, therefore, they are all overruled and the judgment is affirmed.