text:
    Moore v. Philadelphia, Appellant.

      Negligence — Municipalities—Sidewalk—Icy ridge — Notice.
    Where a municipality permits a ridge of ice four inches wide and from two to five inches high to remain across a sidewalk for a month, and a person slips and falls on the ridge after it is covered with snow, the municipality will be liable in damages for injuries sustained.
    Argued Oct. 11, 1906.
    Appeal, No. 112,
    Oct. T., 1906, by. defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1905, No. 3,949, on verdict for plaintiff in case of Sarah Moore v. City of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, O ready, PIead and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Audenried, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,250. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      March 5, 1907 :

      W. C. Wilson, assistant city solicitor, with him Charles JE. Bartlett and John L. Kinsey, city solicitor, for appellant.

      Willard B. Bar cus, for appellee.
   Opinion by

Morrison, J.,

This is an action of trespass for personal injuries to the defendant caused, as alleged, by the negligence of the city officials. Plaintiff’s testimony, and that of her witnesses, shows that she was walking on Spruce street in Philadelphia on February 1, 1905, about six o’clock p. M.; that she slipped and fell on an accumulation or ridge of ice about four inches wide and from two to five inches high, extending across the sidewalk which was covered with snow which had been falling for about an hour before. The ice was formed by water discharged from a drain pipe on to and over the sidewalk at that point, and the ice had been there for about a month previous to the accident. Plaintiff’s injury was a broken hip, and her leg is shortened by the injury and will remain in that condition. The foregoing is in substance what the jury could find from the testimony.

The defendant offered no evidence, the case going to the jury on the plaintiff’s showing and the charge of the court, which is adequate and fair. The defendant’s counsel presented six points, all of which were affirmed, except the first and fifth. The first was refused, and the fifth withdrawn. It is said that there was a motion for judgment non obstante veredicto, but no such motion is printed, nor do we find the ruling of the court thereon. The only assignment of error is : “ The court below erred in refusing to affirm the defendant’s point which was as follows: Under all the evidence the verdict must be for defendant. I refuse that point. The case presents questions of fact which I feel bound to leave to you.” There is no exception to the charge.

We have read the testimony and examined this record with care, and have also carefully considered the argument of the learned counsel for appellant, but have failed to find any sufficient reason for reversing the judgment or for bringing the case before this court. Under the undisputed evidence, the judgment could be sustained on the ground of the independent negligence of the city authorities, even if the ice had been simply smooth and slippery, instead of in a ridge-as before stated: Manross v. Oil City, 178 Pa. 276; Decker v. Scranton City, 151 Pa. 241.

The doctrine of those cases is that a recovery may be had for a smooth and slippery condition of the street, or sidewalk, where it is caused by the negligence of the city officials to discharge a plain duty resting on them. That is to say, where the jury can find, from the evidence, that such slippery condition would not have existed except for such negligence by the proper city officials.

But the plaintiff in this case is not driven to that position. Under the evidence, there was such a ridge of ice across the sidewalk, for so long a time, as to be prima facie evidence of clear negligence on the part of the defendant: McLaughlin v. City of Corry, 77 Pa. 109; Mauch Chunk v. Kline, 100 Pa. 119; City of Erie v. Magill, 101 Pa. 616; Wyman v. Philadelphia, 175 Pa. 117; Evans, Appellant, v. Philadelphia, 205 Pa. 193 ; Koch v. City of Williamsport, 195 Pa. 488.

The court could not hold, as a matter of law, under the evidence, that the plaintiff was guilty of contributory negligence in passing over the ridge of ice : Wertz v. Girardville Borough, 30 Pa. Superior Ct. 260.

The difficulty the plaintiff labored under of fixing the exact place where she fell does not, under the evidence, furnish ground for a binding instruction against her. The testimony upon this question, at both trials, fully warranted the court in submitting the place of the accident to the jury: O’Hey v. Title Insurance and Trust Co., 27 Pa. Superior Ct. 137.

The assignment of error is dismissed and the judgment is affirmed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Reeves’s Appeal.

      Poor law — Germantown poor district — Acts of April 6, 1802, 3 Sm. L. 512' — March 31, 1809, 5 Sm. L. 50 — June 20, 1839, P. L. 337 and May 1, 1861, P. L. 590 — Appeals—Auditors.

      ' The act of March 31, 1809, 5 Sm. L. 50, relating to the accounts of the managers of relief and employment of the poor for the township of Germantown, was superseded by the Act of June 20, 1839, P. L. 337. By the latter act the managers have implied power to pay the tax collector on final settlement, and when they have done so, and their accounts have been settled by the auditors provided by the Act of May 1, 1861, P. L. 590, no right of appeal exists, and the action of the auditors cannot be reviewed by the common pleas on appeal.
    Parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction.
    Usage under a statute may be considered as an argument as to the construction of the statute.
    The auditors of the Germantown poor district are not township auditors, and hence the Act of May 11, 1901, P. L. 185, is not applicable to sustain an appeal from their action.
    Argued. Oct. 11, 1906.
    Appeal, No. 192, Oct. T., 1906, by-Francis B. Reeves, from order of C. P. No. 1, Phila. Co., March T., 1906, No. .1, discharging rule to show cause why appeal should not be sustained in case of Francis B. Reeves from Audit of Accounts of “ Managers for the Relief and Employment of the Poor of the' Township of Germantown.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from audit of accounts of managers for the relief and employment of the poor of the township of Germantown.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Paul Reilly, for appellant.
    — The act of 1839 did not repeal the act of 1809: Hickory Tree Road, 43 Pa. 139; Street v. Com., 6 W. & S. 209 ; Hanover Borough’s App., 150 Pa. 202; Fransen’s Will, 26 Pa. 202; Com. v. Lloyd, 2 Pa. Superior Ct. 6 ; Brown’s Est., 152 Pa. 401; James v. Com., 12 S. & R. 220; Com. v. Vetterlein, 21 Pa. Superior Ct. 587.
    The effect of the alleged acquiescence in the violation of the statute is not such as will abrogate it: Kitchen v. Smith, 101 Pa. 452; Homer v. Com., 106 Pa. 221; Glancey v. Jones, 4 Yeates, 212; Bradbury v. Wagenhorst, 54 Pa. 180; Lutz’s case, 8 Pa. C. C. Rep. 133; Wright v. Crane, 13 S. & R. 447.

      Owen B. Jenkins, for appellees.
    — The auditors are net township auditors : Gangewere’s case, 61 Pa. 342.

      March 5, 1907 :
    The limitation on the tax collector’s commission was never meant to be revived. The managers had express power to pay the tax collector under the act of 1839. If the appellees were in error the conduct of the community has made their error. right: Steiner v. Coxe, 4 Pa. 13; Graham’s App., 1 Dallas, 136; French v. Cowan, 4 New Eng. Repr. 682; Davey v. Turner, 1 Dallas, 11; Lloyd v. Taylor, 1 Dallas, 17; Wartman v. Phila., 33 Pa. 202; Clark v. Dotter, 54 Pa. 215.
   Opinion by

Morrison, J.,

The managers of the poor of Germantown having settled with their collector and allowed him more than five per cent for his services, and their accounts having been settled by the auditors of said poor district, Francis B. Reeves, a taxpayer, filed his appeal from the audit and procured a rule on the managers to show cause why his appeal should not be sustained. Upon answer and argument the learned, court below refused to sustain the appeal, saying: “ The act of 1839 was a new charter for the board of managers, etc., and supplied the machinery for the collection of poor taxes in Germantown and fixed the duties and powers of the board and its officers. The board then had the right to fix compensation of the collector. It is not limited to the five per cent fixed-by the act of 1809. The rule is therefore discharged.”

The learned counsel for the appellant says: “ The exact point involved was whether the managers had the right to pay more than five per cent to the tax collector for the collection of poor taxes.”

Another important point is, we think, whether there is any appeal from the settlement of these accounts by the auditors. The assignments of error raise the questions above indicated.

The theory of the counsel for appellant is as follows: By the act of April 6, 1802, sec. 4, 3 Smith’s Laws, 512, auditors are authorized to be elected to audit the accounts of supervisors of the public highways. By the act of March 31, 1809, sec. 8, 5 Smith’s Laws, 50, the accounts of the managers of the poor of Germantown were directed to be settled by the auditors chosen to settle the accounts of supervisors of the highways. By the act of February 25, 1814, 6 Smith’s Laws, 115, the provision of the act of 1809, concerning the audit of the manager’s accounts, is made perpetual. The general Act of April 15, 1884, sec. 102, P. L. 537, provides for the auditing of supervisors’, treasurers’, and such other accounts of the townships as may by law be referred to the auditors. This act allows an appeal by the township and by the officer whose accounts are settled, to the court of common pleas. By the acts of 1802, 1809, 1814 and 1834 the auditors appear to be required to audit the accounts of the managers of said poor district. By the Act of February 2, 1854, P. L. 21, it being a further supplement to an act to incorporate the city of Philadelphia, it is provided (sec. 18, p. 33) : The existing arrangements for the support of the poor in Germantown are continued in force. This appears to continue the audit of the manager’s accounts by township auditors, which by act of 1834, supra, were increased to nine, instead of three as theretofore. By the act of March 31,1809, supra, the commission to the tax collector was limited to five per cent on sums actually collected by him. We think it may be conceded that, so far, the accounts of the managers of the poor were required to be audited by the so-called township auditors, and that the commission of the tax collector was limited to five per cent.

We now come to an act entitled: “ For the better regulation and employment of the poor of the township of Germantown, in the county of Philadelphia,” approved June 20,1839, P. L. 337. This act is not a supplement nor is it an amendment to any prior act or acts in regard to the management of the poor in Germantown. It appears to have been designed to take the place of former legislation upon its subject, and to provide a complete system for the election of managers, and care of the poor in said district. It empowers the managers to appoint a collector, prescribes his duties and authorizes the managers to settle with the collector, granting them full power to make such final settlement and, we think, the general scope of the act empowers the managers to allow reasonable compensation to the collector.

It may be assumed that the auditors of said poor district are authorized and required to audit the accounts of the managers thereof, but nowhere do we find any provision of law, either limiting the commission to be allowed to the collector, since the act of 1889, or providing for an appeal from the auditor’s settlement. The Act of May 1, 1861, P. L. 590, provides: “ That the qualified voters residing within the bounds of the late township of Germantown, county of Philadelphia, shall elect, at the next election for city officers, nine citizens, three of whom shall be elected to serve one year, three for two years, three for three years, as managers of the poor for the late township of Germantown; they shall also elect nine citizens, three of whom shall be elected for one year, three for two years, three for three years, as auditors, at the next election held for city officers, and annually thereafter the qualified voters of said township shall elect three citizens to serve as managers of the poor and three citizens to serv.e as auditors for three years.”

We have here a plain legislative intention that tlie managers and auditors were to be elected at the city election, and it is clear that their duties related exclusively to the management and settlement of the business of the poor district of German-town. These auditors are in no sense township auditors because since the act of February 2, 1854, supra, the late township of Germantown has been a part of the city of Philadelphia, and there was no business left for township auditors to perform, for the simple reason that no township organization was or could be maintained. What does this indicate ? It seems to us quite clear that the legislation shows an intent to maintain the board of managers of the poor in Germantown and a board of nine auditors to settle and adjust the accounts of said managers, and there being no appeal provided for in the act of 1839, or any subsequent act, and no limitation fixed as to the compensation of the collector, we reach the conclusion that the learned court did not err in the decree above quoted, refusing to entertain the appeal in this case. Our conclusion rests mainly upon the effect of the acts of 1839 and 1861, supra.

We think the act of 1809 was supplied by the act of 1839, which revised the whole subject-matter of the management of the poor of Germantown township, and that the latter act was intended as a substitute for the former. An examination of the two acts indicates that the framer of the latter act had the former before him, as in many instances he seems to have followed the provisions of the act of 1809; therefore, when he omitted from the act of 1839, limitation as to the tax collector’s commission and provisions for an appeal from the auditor’s settlement, we are not warranted in assuming a legislative intent that the older acts should stand as to these provisions. The acts of 1809 and 1889 are special, and they deal with a special topic. If the legislature intended to keep alive any provisions of law in the prior acts it is reasonable to suppose that such provisions would have been referred to in the act of 1839.

The later act works an implied repeal in all cases in which a general revision of the old law is made by the legislature with an intent to substitute the new legislation for the old: Endlich on Interpretation of Statutes, sec. 202, p. 271.

When two statutes relating to mechanics’ liens differed in the details of their legislation, and the one last passed covered the entire subject-matter, it was held that the later act must be held to impliedly repeal the earlier.

“ It has been said that a subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former: ” Johnston’s Est., 33 Pa. 511.

“ The general rule seems to be that .... parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction : ” Endlich on Interpretation of Statutes, sec. 202, p. 272.

“ Such an omission, Avhich cannot of course be supposed to have been unintentional, is, in general, to be regarded as a repeal of the omitted acts or provisions, and the courts are not at liberty to revive them by construction: ” Endlich on Interpretation of Statutes, sec. 384, p. 537.

By the act of 1839 the managers have implied power to pay the tax collector on final settlement. In our opinion, when they have settled with the tax collector and paid him, and their accounts have been settled by the auditors, provided by the act of 1861, no right of appeal exists, and the action of the auditors cannot be reviewed by the common pleas on appeal. It should not be overlooked that the acts of 1809 and 1839 are special legislation, and it is unreasonable to suppose that anything was left out of the revising act of 1839 Avhich the legislature intended to regulate and control this rather anomalous poor district.

In construing the act of 1839, as a complete act covering the subject-matter, it is not important that there is no limitation therein as to collector’s commission and no right of appeal. It is not the first time, by any means, that a board of auditors’ settlement of accounts in Pennsylvania has been final and conclusive. It may be presumed that the legislature purposely left the amount of the collector’s commission to the judgment of the nine managers.

In addition it is argued, and not denied, that the poor board of Germantown has been allowing its collectors more than five per cent commission for a period of about twenty-five years. This may be considered as of some weight in construing the act of 1839.

“ It often becomes, therefore, natural to inquire what has been done under an act; this being of more or less cogency according to the circumstances, for determining the meaning given by contemporaneous exposition: ” Endlich on Interpretation of Statutes, sec. 357, p. 501; also sec. 358, p. 502.

Evidence of a custom may be received, not as a custom binding above the statutes, but as an argument for their construction : ” Steiner v. Coxe, 4 Pa. 13.

After a uniform construction has been given to the law, for nearly half a century, by all the parties interested, and, among others, by the present plaintiffs themselves, it is too late to expect that we will give another: ” Black, C. J., in Wartman et al. v. City of Philadelphia, 33 Pa. 202 (see p. 211).

As to the interpretation of a statute by usage, see Clark v. Dotter, 54 Pa. 215.

"We have omitted to refer to the Act of May 11, 1901, P. L. 185, cited by counsel for appellant to sustain this appeal. That act sustains the appeal to this court, on the exception granted and filed in the court below, provided the appellant was entitled to his appeal to the common pleas. That act only applies to appeals from county, borough and township auditors. If we are correct in holding that the auditors of the German-town poor district are not township auditors, then the act has no application. The counsel also cites the Act of May 1,1876, P. L. 88, but it is a supplement to the Act of April 14, 1851, P. L. 612, and it allows a taxpayer to appeal in accordance with the 104th section of the act of April 15, 1834. And the latter act applies, section 104, to appeals from settlements of township auditors. The above acts do not convince us that the taxpayer in the present case had a right to appeal to the court of common pleas, from the settlement by the auditors of the Germantown poor district.

We are of the opinion that the learned court did not err in refusing to entertain the appeal from the auditor’s settlement. If the taxpayers of the poor district are not satisfied to have the accounts of the managers finally settled by the auditors, they can apply to the legislature for relief.

The assignments of error are dismissed, and the decree affirmed at the costs of Francis B. Reeves.


text:
    Travis v. Lehigh Coal & Navigation Company, Appellant.

      Townships — Classification—Townships of the second class — Supervisor —Public officer — Road law — Act of April 28,1899, P. L. 104 and April 12, 1905, P. L. 142 — Constitutional law.

    The Act of April 28, 1899, P. L. 104, had the effect of making all townships in Pennsylvania of the second class, except “those townships having a population of at least three hundred to the square mile, as shown by the United States census,” after proceedings taken under the act. All townships are prima facie in the second class and remain there until proceedings are taken in pursuance of the act to create them townships of the first class.
    The Act of April 12, 1905, P. L. 142, applies to all townships in a county as second-class townships which have not been established by proceedings under the act of 1899, as of the first class; and in counties where no first-class townships have been' established, it applies to all townships.
    The Act of April 28, 1899, P. L. 104, relating to the classification of townships is constitutional.
    The Act of June 12, 1893, P. L. 451, is repealed by the Act of April 28, 1899, P. L. 104 only so far as townships of the first class are concerned.
    A supervisor who was elected after the passage of the Act of April 12, 1905, P. L. 142, in a township in a county where there are no first-class townships, is entitled to the salary or compensation from contractors under the so-called Losch Road Act of June 12, 1893, P. L. 451.
    Argued Oct. 15, 1906.
    Appeal, No. 146, Oct. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., May T., 1906, No. 205, for plaintiff on case stated in suit of Luke Travis, Supervisor of Blythe Township, v. Lehigh Coal & Navigation Company.
    March 11, 1907 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine right to a salary.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court.

      E. Gf. Earquhar, for appellant.
    No appearance nor paper-book for appellee.

      William Wilhelm, for Henry Dickman, a person interested in the matters involved in the appeal.
   Opinion by

Morrison, J.,

This was an amicable action in assumpsit with judgment in favor of the plaintiff for $250, on a case stated in the nature of a special verdict. From the case stated we gather the following facts: that on February 6, 1906, Daniel Shields, the then supervisor of Blythe. township, entered into a contract with the Lehigh Coal & Navigation Company for the making, etc., of the roads of said township, a copy of which contract is attached and made part of the case stated; said contract was duly and legally made in pursuance of the Act of June 12, 1893, P. L. 451; that at the township election held in the township of Blythe on February 20,1906, the plaintiff, Travis, received the highest number of votes for the office of supervisor of said township ; that the voters of said township at said election voted for but one supervisor for the year 1906, and the plaintiff was the only person who received a certificate of election as supervisor of said township for the year beginning March 5, 1906 ; that in pursuance of said election the plaintiff tdok the required oath of office and filed his bond as such supervisor, duly approved by the court of quarter sessions of Schuylkill county. If the court, under the above stated facts, shall be of opinion that the said Luke Travis was duly elected to, and can claim the office of supervisor in said township, for the township year beginning March 5, 1906, and that as such supervisor, he is entitled to receive a salary, under the provisions of said Act of June 12, 1893, P. L. 451, and of the contract hereto attached, then judgment to be entered in favor of the plaintiff for the sum of' $250, otherwise judgment to be entered in favor of the defendant. Upon argument and consideration, the learned court entered judgment in favor of the plaintiff as stated. From this judgment the defendant appealed and assigned the following errors : 1. “The court erred in making the following decree, and now, May 21, 1906, in No. 205, judgment for the plaintiff is directed to be entered for $250; and in No. 206 judgment for the defendant is directed.” 2. “ The court erred in holding in its opinion: The townships of the county have, therefore, never been classified in any way by any proceeding under any act.” 3. “ The court erred in not holding that the township of Blythe was a township of the second class.” 4. “ The court erred in holding that the Act of April 12, 1905, P. L. 142, did not apply to Blythe township.” 5. “The court erred in not deciding that road supervisors, elected under the act of April 12, 1905, were entitled to no salary or compensation from either the township or a contractor under the Loseh road law of June 12, 1893.”

The first important question involved is, did the Act of Aprih28, 1899, P. L. 104, constitute all townships in Pennsylvania of the second class, with right to be promoted to the first class in the method provided in the act? Second, are road supervisors elected since the Act of April 12, 1905, P. L. 142, went into effect, entitled to any salary or compensation from contractors under the so-called Losch road Act of June 12, 1893, P. L. 451?

1. That act is entitled: “To provide for the classification of the townships of the commonwealth, with respect to their population, into two classes, and to prescribe the form of government for townships of each class.” The act contains twenty-one sections, but only four of them relate to townships of the second class, to wit: the first, second, third and twenty-first. In our opinion, this act had the effect of making all townships in Pennsjdvania, of the second class, except, “ those townships having a population of at least three hundred to the square mile, as shown by the United States census, shall be townships of the first class. All other townships shall be townships of the second class.” To make this act general, so it will apply to all of the townships, we think it must be construed' to prima facie place them all in the second class. Those townships which by reason of their population are entitled to go into the first class are exceptional and something remains to be done to take them out of the second class and place them in the first class. The method of accomplishing this is plainly provided in the Act of April 28,1899, P. L. 104, and the amendatory Act of May 11, 1901, P. L. 160. There can be no townships of the first class until the fact has been ascertained that the population equals 300 persons to the square mile, and this must be followed by the action and proclamation by the county commissioners, designated in the two acts of assembly. The learned court below held, that because no action had been taken in regard to Blythe township for the purpose of ascertaining to which class it belonged, therefore it was not a township of the second class, and the provisions of the act of April 12, 1905, did not apply to it because that act referred exclusively to townships of the second class.

We entertain a different opinion as to the effect of the’act of 1899. We think it placed, for the time being, all of the townships in the second class. The legislature could not know what townships would be entitled to go into the first class. But the law provided a method for ascertaining the population of the townships and thereby ascertaining those entitled to go into the first class. This construction places all townships existing on April 28, 1899, under the provisions of the act. Now, when the act of April 12, 1905, became a law, it applied to all of the townships of the second class, to wit: all of those which had not gone into the first class, by the methods prescribed in the act of 1889 as amended by the act of 1901. The act of 1899, by its plain terms, provided only two classes of townships and it is plain that these classes embrace all of the townships in a county. To hold that there can be no second class townships in a county until there have been first class townships organized, leaves a large number of the townships in the state not subject to the provisions of the act of 1899, nor of April 12, 1905. We think the legislative intent was to create townships of the second class by the act of 1899, without more, and townships of the first class to be thereafter created in the manner designated by the act. We cannot think, when the legislature passed the act of April 12, 1905, in regard to townships of the second class, it vyas supposed not to apply to the townships in the counties not having first class townships. The conclusion of the learned court below seems to recognize three classes of townships, to wit: first and second class in those counties where first class townships have been established, but there are a large number of townships in counties having no first class townships and they must belong, not to the first or second class, but to a third class — something unknown to the law. We cannot agree with this construction of the act of 1899. We think our construction is more reasonable and that it is in accordance with the legislative intent. We think when the act of April 12, 1905, became a law it operated upon all townships not then established as of the first class.

The act of 1899 is constitutional: Commonwealth v. Blackley, 198 Pa. 372; Coal Township, 16 Pa. Superior Ct. 260. These cases also decide that the Act of April 28, 1899, P. L. 104, repeals the Act of June 12, 1893, P. L. 451, so far as townships of the first class are concerned. Plowever, we do not regard that point as important to the present case, because none of the cases are meant to decide that the act of 1893 is repealed as to townships of the second class.

In Com. v. Blackley, 198 Pa. 372, the constitutionality of the act of 1899 was squarely affirmed in a per curiam affirming the court below. The coal township case supra was an appeal to the Superior Court from the decision of the court below holding the act of 1899 unconstitutional, and if not unconstitutional, that it repealed the act of June' 12,1893, in so far as it concerned townships of the first class. We affirmed the latter point but reversed the judgment and held the act of 1899 constitutional. From our judgment there was an appeal to the Supreme Court: Phila. & Reading Coal' & Iron Company’s Petition, 200 Pa. 352. There the Supreme Court said: “ The appeal is dismissed and the decree of the Superior Court affirmed.” In the opinion by Mr. Justice Brown the printer has evidently used the word unconstitutional where he should have used constitutional. Further along in the opinion, Mr. Justice Brown says, in substance, that the act of April 28, 1899, repeals the Act of June 12, 1893, P. L. 451. In his opinion he refers to the opinion of the judge of the court below. But he only held the act of 1893 repealed in so far as it concerns townships of the first class, and that is just what we decided in Coal Township, 16 Pa. Superior Ct. 260, and the Supreme Court unqualifiedly affirmed us. It is, therefore, evident that Justice Brown’s opinion can only mean that the act of 1893 is repealed as to townships of the first class.

2. We now come to the next question, was the plaintiff elected under the provisions of the act of April 12, 1905, and is he entitled to compensation for his services from contractors under the act of June 12, 1893? We are of the opinion that if the plaintiff was elected supervisor of Blythe township on February 20, 1906, his election was under the provisions of the Act of April 12, 1905, P. L. 142. Having reached the conclusion that Blythe was a township of the second class, the plain terms of the first section of the act, last cited, required the voters to elect supervisors on the third Tuesday of February, 1906. Whether or not they should elect one or more supervisors. depended upon the condition of their board as to the number of supervisors elected at former elections and the length of their respective terms of office.

The appellant attempts, to raise the question- of the right of supervisors to compensation for their services under the act of April 12, 1905, but that question is not raised in the case stated and we decline to decide it as its decision is wholly unnecessary in the present case.

The important question is, can the plaintiff who claims to have been elected supervisor after the act of April 12, 1905, was-passed, to wit: on February 20, 1906, recover from the defendant the salary provided in the so-called Losch road act of June 12. 1893 ? The third paragraph of the fifth section of that act requires the contractor who undertakes to open, make and repair the-roads to pay to each supervisor or road commissioner the sum of $250. This is the basis of the judgment granted by the court below in favor of the plaintiff. The 16th section of the act of April 12, 1905, contains the following: “ All acts or parts of acts, general, special or local inconsistent herewith or supplied hereby be and the same are hereby repealed: Provided, however, that the act, entitled an act enabling the taxpayers of townships and road districts to contract for making, at their own expense, the roads and paying salaries of township and road district officers and thereby preventing the levy and collection of road tax therein, approved June 12, 1893, .... shall not be repealed hereby but shall continue in full force and effect.” In our opinion the legislative intent disclosed by the acts of 1893, 1899 and 1905, clearly allows supervisors in a second class township, where a taxpayer has contracted to make, open and repair the roads, under the act of 1893, to collect the salaries provided in the fifth section of that act. This for the reason that the act of 1905 expressly saves from repeal the provisions of the act of 1893 rendering the contractor liable for supervisors’ and road commissioners’ salaries. We therefore conclude that the learned court did not err in entering judgment for the plaintiff on the facts in the case stated.

The liability of the defendant is clear under its contract of February 5, 1906, made part of the case stated, and the provisions of the act of June 12, 1903.

By reason of the learned court below filing one opinion in two cases something appears in the assignments of error and argument about the case of the Supervisors of Schuylkill Township v. The Lehigh Coal and Navigation Co., No. 206, May T., 1906, wherein the court entered judgment in favor of the defendant. That case is not before us on this appeal and we indicate no opinion as to it. It is only referred to because it appears in the case of Travis, supervisor, now under consideration.

We may say, to avoid any future misunderstanding, that Luke Travis, plaintiff, appears to have a prima facie right and title to the office of road supervisor .of Blythe township, for the year 1906, and we cannot try such right and title in this suit. Therefore it is assumed that he is a road supervisor for at least one year from the second Monday of March, 1906, by virtue of the election of February 20, 1906.

The first assignment of error is not sustained; the second assignment is sustained pro forma, but it is not material in this case and it does not call for a reversal of the judgment. The same may be said as to the third assignment and also as to the fourth. The fifth assignment is not sustained.

The judgment is affirmed.


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    Dalton’s Estate.

      Orphans’ court — Amendment of decree — Petition, 0. 0.

    Where an account and an adjudication show that an award based thereon is to be paid out of the proceeds of sale of real estate sold for the payment of the debts of the decedent, the decree of the court may, fifteen years thereafter, be amended, to show that fact, and a surety on the bond of the administrator has no standing to complain of such amendment. If the surety is aggrieved by laches, he may raise that question in the suit on the bond based on the amended decree.
    Argued Oct. 17, 1906.
    Appeal, No. 48, Oct. T., 1906, by Robert J. Barr, from decree of O. C. Phila. Co., Jan. T., 1891, No. 492, amending prior decree in Estate of Margaret Dalton, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill of review.
    Before Penrose, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of the court.

      Alex. Simpson, Jr., with him Charles L. Brown, for appellant. —
    The petitioner was guilty of laches: Wehrle’s Estate, 205 Pa. 62 ; Russell’s App., 34 Pa. 258 ; Ashhurst’s App., 60 Pa. 290; Neely’s App., 85 Pa. 387; Le Moyne’s App., 104 Pa. 321; Scott’s App., 112 Pa. 427; Baugh’s Est., 12 Pa. Dist. Rep. 303 ; Stayton v. Graham, 139 Pa. 1; Jones’s App., 99 Pa. 124; Priestley’s App., 127 Pa. 420 ; Kachline’s Est., 7 Pa. Superior Ct. 163 ; Fletcher’s App., 125 Pa. 352.
    Perhaps there is no case in the books more nearly like the present than Glasz’s Estate, 17 W. N. C. 349, reversed in Appeal of Fidelity Ins., etc., Co., 115 Pa. 157.

      Trevor T. Matthews, for appellee.

      March 5, 1907:
   Opinion by

Morrison, J.,

This is an appeal of Robert J. Barr from the decree of the orphans’ court of Philadelphia county made on an amended bill of review and the answer thereto, as follows, to wit: “ And, now, to wit: October 31, 1905, upon consideration of the amended bill of review and the answer thereto, it is ordered and decreed that the prayer of said bill is granted, and the adjudication in the estate of Margaret. Dalton, deceased, at No. 492, January Term, 1891, is amended and corrected by inserting on page 3, line 24 et seq. of said adjudication, after the words ‘the claim of Charles Beckingham is awarded with interest from the death of decedent, viz., October 16, 1890,’ the words, ‘ out of and from the proceeds of the sale of real estate sold for the payment of the debts of the decedent.’ ”

On March 15, 1892, an adjudication of the orphans’ court was made in the estate of Margaret Dalton, deceased, and of the funds remaining in the hands of the administrator, as shown by his final account, $820 were awarded to Charles Beckingham, the appellee. An inspection of the account of the administrator upon which the adjudication was made clearly shows that the whole sum in the accountant’s hands was $1,804, and of this amount $1,750 were the proceeds of the sale of the real estate of the decedent, for the payment of debts, and $54.00 of said sum came from the personal estate. The account also showed that all of the money in excess of $820 had been paid out on preferred claims and the expenses of administration, and, therefore, the money awarded to appellee was the proceeds of the sale of decedent’s real estate and nothing else.

The appellant, Robert J. Barr, is the surety on the bond of the administrator, to the commonwealth, to secure the proper distribution of the proceeds of the sale of the real estate under the order of the orphans’ court. He does not deny his primary liability as such surety, and, indeed, it is not possible to see how he could do so, unless he denied the execution and delivery of the bond, which he does not do. He does not deny that the administrator failed to pay the appellee the money awarded him by the orphans’ court. Nor does he deny that the administrator became insolvent, a fugitive from justice and that he could not be found.

In the common pleas of Philadelphia county, to June Term, 1902, the appellee, Charles Beckingham, brought a suit in the name of the commonwealth against James E. Magee and Robert J. Barr, on said bond to the commonwealth, to recover the amount due him under the said adjudication by the orphans’ court. In that case the plaintiff recovered a judgment for the amount of his claim for want of a sufficient affidavit of defense. But on appeal to this court that judgment was reversed for the reason that, “ In an action against a surety upon a bond given by an administrator for the sole purpose of securing proper distribution of the proceeds of the sale of real estate for the payment of debts, a statement of claim is insufficient to support a summary judgment which fails to aver that an award made by the orphans’ court and claimed by the plaintiff, was a portion of the proceeds of such sale.” In that case we also applied the doctrine that the statement of the demand must be self-sustaining. In default of the record showing these necessary ingredients, this court was compelled to reverse that judgment: Commonwealth v. Magee, Appellant, 21 Pa. Superior Ct. 329.

The above, in substance, was all that was decided in that case. We refer to it because it is cited by the learned counsel for the appellant in the case at bar. In our opinion, it comes with bad grace for the appellant to contend against his liability on the bond because the original adjudication by the orphans’ court did not affirmatively say that the $820 was to be paid to the appellee out of the proceeds of the sale of the decedent’s real estate. If the surety, Robert J. Barr, and his counsel, ever examined the account, the basis of the adjudication, they knew perfectly well that every dollar of the money remaining in the hands of the administrator, at the date of the adjudication, came from the sale of the decedent’s real estate.

Coming now to the present appeal which is from the decree of the orphans’ court of October 31,1905, hereinbefore quoted, it is difficult for us to see why it ought not to be sustained. The decree does not, in fact, add to or take from the adjudication of March 15, 1892. It is simply an amendment making plain that which clearly appeared from the account and the adjudication when read together. The petition herein is called an amended bill of review, but itis not clear that a bill of review was necessary. We think the inherent power of any court is sufficient, on motion, of an interested party, to so amend its decree as to make clear and concise that which was in substance covered by the original decree. We entertain no doubt, whatever, that the orphans’ court had the power, on the petition of the attorney for Charles Beckingham, to make the amended decree of October 31, 1905.

The learned counsel for the appellant have made an able argument and cited a large number of authorities for the purpose of convincing us of the laches of the appellee and that he is estopped from pursuing the surety on the bond. We deem it unnecessary to discuss these cases as we discover nothing in any of them, when applied to the present case, warranting us in holding that the appellee was not entitled to have the orphans’ court review the adjudication and so amend the decree as to put its meaning beyond controversy. The only parties affected by this amendment are the appellee and the appellant. They were both interested in the account of the administrator, and it was the duty of the appellant to examine the account and ascertain whether or not the accountant had complied with the decree of the court. This was especially so when the accountant became insolvent and a fugitive from justice. Whether or not the plaintiff has been guilty of such laches as will prevent his recovery in his suit pending in the court of common pleas we are not called upon to decide in this case. What we do decide is that the court had ample power, and it was its duty, to so amend its decree as to make clear the adjudication of March 15,1892, so that there would be no dispute in the common pleas as to the form and substance of the decree of the orphans’ court. We think the opinion of the orphans’ court fully sustains the amended decree.

We cannot sustain any of the assignments of error. The appeal is dismissed, and the decree affirmed, at the costs of the appellant.


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    Barclay v. Lehigh Coal & Navigation Company, Appellant.
    February 25, 1907:

      Check — Lost check — Indemnity—Banks and hanking.

    Where a check has been lost in the mail, and the maker upon notice thereof has stopped payment, and it appears that the payee requested that payment should be made by check mailed to him, and had refused to give a simple agreement to indemnify the payee against loss, he cannot thereafter recover the amount of the cheek by suit, without a prior tender of indemnity.
    Argued Oct. 18, 1906.
    Appeal, No. 152, Oct. T., 1906, by-defendant, from order of C. P. No. 1, Phila. Co.,-Sept. T., 1905, No. 4,240, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William K. Barclay v. Lehigh Coal & Navigation Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Assumpsit for a dividend.
    The facts appear by the opinion of the Superior Court.

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

      James MoMullan, with him H. Gordon McGoueh, of Dickson Me Couch, for appellant,
    cited : Snyder v.Wolfley, 8 S. & R. 328 ; Miller v. Race, 1 Burrows, 452; Davis v. Dodd, 4 Taunton, 602; Ex parte Greenway, 6 Vesey, 812; Bisbing v. Graham, 14 Pa. 14; Bigler v. Keller, 8 W. N. C. 323 ; Beaver Yalley Lodge v. First Nat. Bank, 7 Pa. Superior Ct. 552.

      W. C. Mason, of Mason Edmonds, for appellee.
   Opinion by

Morrison, J.,

This is an action of assumpsit. On November 27, 1900, plaintiff was the registered owner of 149 shares of the capital stock of the defendant company, on which a dividend amounting to |223.50 had been duly declared, payable on that day. On November 26, 1900, defendant company deposited in the mail, postage prepaid, an envelope addressed to the plaintiff at liis proper address in Philadelphia, containing a check to plaintiff’s order, for $223.50, in payment of said dividend, pursuant to a written order, dated November 12, 1896, from the plaintiff to the defendant, directing that all such dividends be sent to the plaintiff in' that way to that address. Defendant received a letter from plaintiff, dated December 1,1900, saying that “your check for the dividend due to me on 149 shares has not reached me . . . .” whereupon defendant stoppedpayment of the check, and on December 19, 1900, requested the plaintiff to sign a statement that the said check was not delivered to nor received by him, and after diligent inquiry, he had failed to obtain any information concerning it, and agreeing to indemnify and save harmless the defendant company against any claim upon said lost check by any holder thereof. This the plaintiff refused to do, and, after waiting nearly five years, brought this suit, although the defendant company had always been ready and willing to pay the amount of said dividend upon receiving such an agreement of indemnity. The above facts, in substance, appear in the affidavit of defense, and it is further averred therein that the defendant could not be compelled to pay said dividend over again until properly indemnified against the said check. The plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which rule the court made absolute, without filing an opinion. • From this judgment the defendant appeals and assigns this action of the court for error.

From the very nature of the transaction the plaintiff might have received the cheek and indorsed it for full value to some other person, and such person might have a right of action thereon against the defendant company. Therefore, it seems to us that the defendant’s request for a simple agreement to indemnify it against the check before paying the dividend by another check, or otherwise, was reasonable. It seems to us that the plaintiff is in the position of one suing on an equitable title. By his own request the dividend was remitted to him by check, which, without any fault on the part of the defendant, the plaintiff alleges he did not receive. There is, therefore, outstanding the check of the defendant for the amount of the dividend, which it is entitled to have surrendered, or as an equivalent, security against damage from payment being made without having it delivered up. Under these circumstances, we think, a tender of indemnity is a material part of the plaintiff’s title, and no light of action should accrue until it is made. It presents the case of a suit brought before the cause of action is complete. It is well settled that in an action on an equitable title, a tender of everything in the nature of a condition should precede the institution of the action.

• In Snyder v. Wolfiey and another, 8 S. & R. 328, the plaintiff sued to recover the amount of a prize drawn by him in a lottery, of which the defendants were managers,' opposite to a certain ticket, which was averred in the declaration to have been lost. There was sufficient proof that the plaintiff was the owner of the ticket. Upon this state of facts the court, having been requested by the counsel for the plaintiff to instruct the jury that the ticket on which this suit is brought, being lost, it is not necessary that the plaintiff should aver in his declaration, or prove on the trial, that he had offered to indemnify the defendants against any claim which might in the future be founded upon it. The court charged, inter alia, that he would not be entitled to recover, unless he showed that he had offered to the defendants an indemnity against any future claimant. The Supreme Court affirmed this part of the charge, holding, that tender of indemnity, therefore, was a substantial part of the plaintiff’s title, and no right of action would accrue until it were made. It is argued here that the reason of that decision is that the ticket was payable to bearer, while the check in the present case was payable to order. But suppose the plaintiff received the check and indorsed it and sold it to another for value, then the defendant company would be liable upon it to as full an extent as if it had been made payable to bearer. The rule is stated in Byles on Bills and Notes (ed. 1874, page 561, 375) : “ And it is also now clear that, if a bill, note or check, negotiable either by indorsement or delivery only, be lost, no action will lie at the suit of the loser against any one of the parties to the instrument, either on the bill or note itself, or on the consideration.”

In the case of Hansard v. Robinson, cited by Byles, Lord Tenterden said: “Is the holder then without remedy? Not wholly so. He may tender sufficient indemnity to the acceptor and if it be refused, he may enforce payment thereupon in a court of equity and this is agreeable to the mercantile law of other countries.”

In Miller v. Race, 1 Burrows, 452, Lord Mansfield stated that in the case of Walmsley v. Child, 1 Ves. 345, the bill was dismissed because the administratrix either could not, .or would not, give the security required to entitle her to recover on notes lost or destroyed.

In Bisbing v. Graham, 14 Pa. 14, suit was brought upon a note which was subsequently lost. The court in that case allowed a recovery. On appeal to the Supreme Court, it was held that when the note was lost after the commencement of the action, it might go to judgment, but that indemnity must be given before execution is permitted to issue.

In Bigler v. Keller, 8 W. N. C. 323, suit was brought upon a lost note, and a recovery was allowed as to the ^principal of the debt, upon plaintiffs giving a sufficient bond of indemnity to defendant. On appeal to the Supreme Court this was affirmed.

But our own case of Beaver Valley Lodge v. Bank, 7 Pa. Superior Ct. 552, and cases therein cited, seem to settle this question. There the court below refused judgment for want of a sufficient affidavit of defense in an action brought to recover the amount of a lost certificate of- deposit which was payable to order. We held as stated in the syllabus : “ A bank certificate of deposit having been lost before suit brought tender of indemnity therefor is properly required by the court, as a condition precedent to judgment for want of a sufficient affidavit of defense. The defendant is entitled to protection from costs and expenses incident to litigation and the offer to indemnify should accompany the summons.” That case settles the question in this court.

We may be pardoned for remarking that the plaintiff in the present case seems to have been looking for a lawsuit when he would not sign the simple written statement, required by the defendant, as set forth in the affidavit of defense.

The assignment of error is sustained and the judgment reversed with a procedendo.


text:
    Heisley v. Economy Tool Manufacturing Company, Appellant.

      Replevin — Statement of claim — Act of April 19, 1901, P. L. 88— Affidavit of defense — Bailment.
    A declaration in replevin under the Act of April 19, 1901, P. L. 88, is sufficient which avers that plaintiff was an assignee of bailment leases for the chattels in question, that default had been made in payment of rent reserved, that the bailee had become bankrupt, and that the chattels in violation of the terms and provisions of the leases had been disposed of and delivered wrongfully to the defendant, and tliat demand for their surrender had been refused by the defendant.
    Under the Act of April 19, 1901, P. L. 88, it is not necessary for the plaintiff-in replevin to anticipate in his statement of claim the defense which may be set up and traverse it. All that the plaintiff is required to do is set to forth clearly and fully his title with an averment of wrongful dispossession.
    No title is acquired by one who purchases in good faith from a mere bailee.
    In Pennsylvania there is no market overt, and a purchaser cannot get title to personal property by buying and paying for it to a person who has no title. ■ •
    Argued Oct. 18, 1906.
    Appeal, No. 158, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1906, No. 8,506, making absolute rule for judgment for want of a sufficient affidavit of defense in case of H. E. Heisley v. the Economy Tool Manufacturing Company and the Philadelphia Boat & Engine Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head JJ.
    Affirmed.
    Replevin to recover possession of a planing machine and a lathe.
    Rule for judgment for want of a sufficient affidavit of defense.
    The affidavit of defense was as follows :
    The said defendant did not derive title to either the planing machine or the lathe described in the plaintiff’s statement of claim from the Economy Tool Manufacturing Company, or from either of the two lessors named in said statement, but did derive title and the right of possession to said two machines from a partnership known as the Philadelphia Boat and Engine Company, consisting of deponent, Henry L. Blatz and Jacques Stiegelmann, which partnership became the corporation defendant on March 10,1905, by virtue of a charter obtained under the laws, of the state of Delaware on said date. Prior to March 10, 1905, said two machines formed part of the assets of the aforesaid partnership. Said two machines became the property of said partnership on September 19, 1903, as part of the contribution of the said Jacques Stiegelmann to said firm, prior to which time the said Jacques Stiegelmann was in possession and use of said two machines in connection with the business then carried on under the name of the Laurel Machine Works on the premises in the rear of No. 1015 North Front street in the city of Philadelphia, on which premises, the said two machines remained continuously from September 19, 1903, until tliey were taken by the sheriff of the county of Philadelphia in obedience to the writ of replevin issued in this case.
    At the time when said two machines were transferred and delivered to the said defendant by the partnership aforesaid the plaintiff had no right, title or interest therein, and both said defendant and its predecessor, the partnership aforesaid, had no notice or knowledge of the existence of the two leases attached to and made part of the statement of the plaintiff’s claim filed herein; nor did said partnership at the time of its formation on September 19, 1903, have any notice or knowledge of the existence of said two leases. On April 14, 1903, the Economy Tool Manufacturing Company was adjudicated bankrupt and by virtue of said adjudication all right, title and interest of said Economy Tool Manufacturing Company in said two machines, if any it had, passed either to the trustee of its estate in bankruptcy or reverted to the respective lessors of said two machines.
    Deponent further avers that the said defendant had no knowledge or notice of the plaintiff’s alleged claim to said two machines until some time in the month of April, 1906, or more than a year after said two machines had come into the possession of said defendant. Prior to the making of the plaintiff’s demand for said two machines, as set forth in his statement of claim, said two machines had been continuously, openly and notoriously in the possession of said defendant and of its predecessor, the partnership above mentioned, since September 19, 1903, from and after which date no claim or demand was made either by the trustee in bankruptcy of the Economy Tool Manufacturing Company or by the lessors named in the leases attached to the plaintiff’s statement of claim or by the plaintiff in this case for possession of said two machines, or for rent for the same, or for compensation for the use thereof, until the demand made by the plaintiff as set forth in his statement of claim.
    Said defendant therefore denies that the plaintiff has any right, title or interest in either of said two machines, but, on the contrary, avers that it will prove its title thereto as above set forth at the trial of this case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Wm. Y. C. Anderson, for appellant.
    — The plaintiff’s declaration does not comply with section 4 of the Act of April 19, 1901, P. L. 88: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.
    It is submitted that the affidavit of defense was so far responsive to the declaration as to require that a jury determine the question of title which the Act of April 19, 1901, P. L. 88, declares to be the issue in all cases of this kind: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463; Twitchell v. McMurtrie, 77 Pa. 383.

      Charles J. Sharkey, with him E. Pierce Buckley, for appellee.
    —The declaration meets the requirements of the statute and the decisions of this court: Act of April 19,1901, sec. 4, P. L. 88 ; Painter v. Snyder, 22 Pa. Superior Ct. 603 ; Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.
    Caveat emptor applies. No title is acquired by one who purchases in good faith from a mere bailee : Hardy v. Metzgar, 2 Yeates, 347; Lecky v. McDermott, 8 S. & R. 500 ; Crist v. Kleber, 79 Pa. 290; Painter v. Snyder, 22 Pa. Superior Ct. 603 ; Nat. Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582; Hildeburn & Bro. v. Nathans, 1 Phila. 567 ; Miller Piano Co. v. Parker, 155 Pa. 208; Lamb v. Leader, 6 Pa. Superior Ct. 50.
    March 5, 1907:
   Opinion by

Morrison, J.,

The action is replevin for the recovery of the possession of a planing machine of the value of $200, and a lathe of the value of $200. The writ was duly executed and the appellant entered a property bond and retained the machines. After declaration filed and an affidavit of defense on the part of the appellant, the court below on motion and argument granted judgment in favor of the plaintiff for want of a sufficient affidavit of defense. The assignments of error raise the question of the sufficiency of the declaration and of the affidavit of defense. We think the plaintiff’s declaration is a concise statement of his cause of action, and that it calls for a sufficient affidavit of defense. The declaration avers that on July 10, 1902, George Woolerton was the owner and possessor of the planing machine, and on that day he delivered it to the Economy Tool Manufacturing Company under a written contract of bailment, for a definite term, and to be returned to him at the end of the term, on the failure of the bailee to comply with the terms of the bailment; that on March 6, 1906, the bailor duly assigned the written lease or bailment to the plaintiff, and copies of said lease and assignment are annexed and made part of the declaration. That on June 28, 1902, J. W. Cregar was the owner and possessor of the lathe, and on that date it was by writing leased and bailed to said Economy company, and on March 6,*1906, the bailor assigned said lease to the plaintiff, copies of said lease and assignment being annexed and made part of the declaration. The declaration further avers default in payment of a part of the rent reserved in each lease; that the full terms of said leases have long since expired, and that the said Economy Tool Manufacturing Company has been adjudicated a bankrupt. That in violation of the terms and provisions of said leases the said machines were disposed of and. delivered wrongfully to the appellant; that demand had been made on the appellant for the surrender of said machines which demand was refused, and that plaintiff had sustained damages in the sum of $200 on each of said machines by the unlawful detaining of the same by the appellant.

The affidavit of defense does not deny the ownership of the machines by the respective bailors, as stated in the declaration; does not deny the execution and delivery of the- leases and the machines thereunder, as stated in the declaration; does not aver the payment of the rentals reserved in said leases, and does not set up any sufficient title or right of possession in the machines as against the bailor and his assignee. The declaration complies with the requirements of the act of assembly: Act of April 19, 1901, P. L. 88. The leases under which the assignors of the plaintiff parted with the machines were bailments, and not conditional sales: Painter v. Snyder, 22 Pa. Superior Ct. 603.

Under the Act of April 19, 1901, P. L. 88, it is not necessary for the plaintiff in replevin to anticipate in his statement of claim the defense which may be set up and traverse it. All that the plaintiff is required to do is to set forth clearly and fully his title with an averment of wrongful dispossession: Drumgoole, Appellant, v. Lyle, 30 Pa. Superior Ct. 463. The defendant or party intervening shall, within fifteen days after the filing of the declaration, file an affidavit of defense setting up the facts, denying the plaintiff’s title and showing his own title: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.

The present affidavit of defense contains no averment that defendant or anyone else purchased the machines from anybody having title thereto; no averment that any amount was paid on account of the rentals reserved in the leases. If defendant was 'a bona fide purchaser for value and. had no notice of the bailment, it would not be sufficient, without more, to deprive plaintiff of the ownership and possession of the machines. No title is acquired by one who purchases in good faith from a mere bailee: Crist v. Kleber et al., 79 Pa. 290; Painter v. Snyder, 22 Pa. Superior Ct. 603; Nat. Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582; Miller Piano Co. v. Parker, 155 Pa. 208; Lamb v. Leader, 6 Pa. Superior Ct. 50.

The affidavit of defense sets up nothing to estop the bailor or his assignee, the plaintiff, from recovering the property. In Pennsylvania there is no market overt, and a purchaser cannot get title to personal property by buying and paying for it to a person who has no title : Lecky v. McDermott, Administrator, 8 S. & R. 500. The affidavit of defense is wholly insufficient to meet the plaintiff’s averments of title and right of possession, and, therefore, the learned court did not err in making the rule for judgment for want of a sufficient affidavit of defense absolute.

The assignments of error are dismissed and the judgment is affirmed.


author: Mobbison, J.,

text:
    Prospect Dye Works v. Federal Insurance Company, Appellant.

      Insurance — Fire insurance — Insurable interest — Parol agreement to purchase real estate.

    One who has entered into merely a parol contract to purchase real estate, which cannot be enforced under the statute of frauds, has no insurable interest in the property as an unconditional and sole owner, within the meaning of such words, in a policy of fire insurance.
    Argued Nov. 16, 1906.
    Appeal, No. 225, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., Sept. T., 1905, No. 12, on verdict for plaintiff in case of Prospect Dye Works v. Federal Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Be ayer, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Endlich, J.
    The facts are stated in the opinion of the Superior Court.
    The court give binding instructions for plaintiff.
    Verdict and judgment for plaintiff for 11,344.50. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Isaac Hiester, for appellant.
    — It is well settled in this state that an insurable interest is one which can be enforced at law or in equity: Farmers’ Mut. Ins. Co. v. Turnpike Co., 122 Pa. 37 ; Greenlee v. Greenlee, 22 Pa. 225; Bodine v. Glading, 21 Pa. 50 ; Meason v. Kaine, 63 Pa. 335 ; Rohrbach v. Germania Fire Ins. Co. 62 N. Y. 47; Essex Savings Bank v. Ins. Co., 57 Conn. 335; Lloyd’s App., 82 Pa. 485 ; Ostrander on Fire Ins., sec. 85, p. 271; Burkhart v. Ins. Co., 11 Pa. Superior Ct. 280.
    March 11, 1907 :
    The consummation of the agreement after the fire relates back so as to entitle the purchaser to recover for the loss previously occurring: Rockland, etc., Coal & Oil Co. v. McCalmont, 72 Pa. 221.

      M. H. Schaffer, of Rieser Schaffer, for appellee. —
    An insurance company which has issued a policy upon a parcel of real estate cannot prevent recovery thereon by showing that the title of the insured rested only in parol: Whitmore v. Ins. Co., 148 Pa. 405; Lloyd’s App., 82 Pa. 485; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Taylor v. Adams, 2 S. & R. 534; Ambrose v. Fire Ins. Co., 19 Pa. Superior Ct. 117.
   Opinion by

Mobbison, J.,

On December 31, 1904, Otto Reisman offered to sell to the plaintiff a factory then in the possession of the latter as Reissman’s tenant. The property was to be conveyed subject to a mortgage of $9,000 and an additional consideration of $18,000, which was to be secured by a second mortgage. It is conceded that no written contract was made,'no part of the purchase money paid and no possession taken under the agreement, until after the destruction of the property by the fire which gives rise to this suit.

Before the execution and delivery of any written contract or conveyance whatever, on January 14,1905, the plaintiff took out a policy of insurance on the property from the defendant company with a loss clause payable to Reissman as mortgagee. On January 18, 1905, before the execution and delivery of any title for the property to the plaintiff, there was a loss by fire. Subsequent to the fire, at a time not precisely shown by the evidence, Reissman conveyed the property to the plaintiff. The rental, which was payable monthly, had been paid till December 31, 1904.

At the close of the evidence the defendant presented the following points : 1. The plaintiff has not shown any insurable interest at the time of issuing the policy nor at the time of the fire. 2. The plaintiff has not shoWn unconditional and sole ownership at the time of the issuing the policy nor at the time of the fire. 3. There is no evidence in the case entitling the plaintiff to recover. 4. Under all the evidence in the case the verdict must be for the defendant.

The learned court charged the jury as follows : “ There isn’t anything that it will be necessary for you to pass upon in this case. For the present the plaintiff is entitled to a verdict for the claim that it has made. I therefore asir you — and I take the full responsibility for the verdict — to render a verdict for the plaintiff for $1,344.55.” (Exception to the charge of the court noted for defendant.) Defendant’s counsel moved for judgment in favor of the defendant non obstante veredicto, but the court overruled the motion and entered judgment on the verdict.

At the time of the fire the plaintiff had no title but a mere expectancy of becoming owner, and this undoubtedly depended upon the continued willingness of the vendor to convey, until the conveyance should be made. The policy of insurance contained the following: “ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void .... or if the interest of the insured be other than unconditional and sole ownership.” We thus have the question, plainly raised, whether the plaintiff had an insurable interest in the property which entitled it to recover on a policy wherein it was insured on the theory that it was the unconditional and sole owner of the property insured.

The learned court below in the opinion discharging the rule for a new trial and for judgment for the defendant non obstante veredicto, concedes that at the date of the insurance the plaintiff had no contract, title or right to title satisfying the demands of the statute of frauds, and that as between landlord and tenant (a relation which subsisted in the present ease), there can be no delivery of possession capable of taking out of the statute a parol sale of the leased property by the landlord to the tenant, the latter continuing in possession : Greenlee v. Greenlee. 22 Pa. 225. It is also conceded that, in order to afford a basis for a valid contract of insurance there must be in the insured, at the time, an interest capable of enforcement at law or in equity: Insurance Co. v. Turnpike Co., 122 Pa. 37. Tlie learned court then takes the position that none of the principles seem to present any difficulty in this case, saying it is well understood that, in this state, the statute of frauds does not avoid a parol sale of land; it simply restrains its effect; citing Tripp v. Bishop, 56 Pa. 424, 427. But that case clearly holds that the remedy is an action for a breach of the parol contract, and the measure of damages is not the price agreed to be paid. ,

The next position is : The parties, however, or those standing in their shoes, may take the contract out of the Statute by waiving its restrictions and confessing their obligation; citing Christy v. Brien et al., 14 Pa. 248 ; Houser v. Lamont, 55 Pa. 311; Coal & Oil Co. v. McCalmont, 72 Pa. 221; Lloyd’s Appeal, 82 Pa. 485; Burkhart v. Ins. Co., 11 Pa. Superior Ct. 280. And, where they choose so to do, not only can no one else insist upon the application of the statute, as all the cases just referred to show, but equity will enforce the contract, citing: Tilghman, chief justice, in Taylor v. Adams, 2 S. & R. 534, at p. 535: “ Although the act of frauds declares that no title shall pass greater than estate at will without a contract in writing, yet on a bill in equity filed against the vendors, if they confessed the agreement, they would be decreed to execute a conveyance.” To the same effect is the language of Gibson, C. J., in Christy v. Brien, 14 Pa. 248.

Now, right here is the pinch of the present case. Certainly it is true, and no well-informed Pennsylvania lawyer will dispute at this day, that where a bill sets up a parol agreement to convey by vendors, and they appear to the bill and confess the agreement, and do not set up the statute of frauds, the court of equity would have ample power to decree the execution of a legal title. But suppose they do not confess the agreement, or, confessing it, set up the statute of frauds, and, like the case at bar, there is no written contract, no payment of purchase money by the vendee and no possession under the parol agreement ; then it is equally true that no court of equity would have power to decree a conveyance of any title whatever. This brings us to the exact situation in the present case. At the time the plaintiff took the insurance on the dye works, as sole and unconditional owner, it had no title whatever but asimple parol agreement for a conveyance which was not made until after the injury of the property by fire, nor had it any legal possession under the agreement of sale, nor had it paid any part of the purchase money. Upon this conceded state of facts it is beside the point to say that the vendor subsequently recognized the parol agreement and conveyed the property. To be sure he did, and why not ? It might be inferred it was done for the very purpose of holding the insurancé company to pay the loss. Suppose there had been no fire and'the insured property had doubled in value and the vendor had seen fit to repudiate his parol contract and sold the property to another, will any lawyer in Pennsylvania contend that the vendee would have any remedy except his action for damages for the breach ? If such contention be made it is in the teeth of all of our decisions.

All definitions of an insurable interest import an interest in the property insured which can be enforced at law or in equity : Miltenberger v. Beacom, 9 Pa. 198. In Wood on Fire Insurance, 625, it is said : “ A right, too^ must be of such a nature, in order to constitute an interest, as the law will recognize and enforce, for a mere moral title will not sustain an insurance.”

The interest must be enforceable either at law or in equity: 1 Wood on Fire Insurance, 656.

In Wilson v. Insurance Co., 19 Pa. 372, Lowby, J., said : “ Interest in the property insured is an essential link in the relation of insurance : ” Farmers’ Mut. Ins. Co. v. Turnpike Co., 122 Pa. 37.

Torentitle a party to a decree for specific performance, the contract must be mutual. Both parties must by the agreement have the right to compel specific performance : Bodine v. Glading, 21 Pa. 50.

“ A vendor cannot maintain an action to recover the purchase money on a verbal agreement of sale. •

“ In an action on a verbal contract by the vendee against the vendor, the jury cannot give a conditional verdict to be released on the payment of the purchase money: ” Meason v. Kaine, 63 Pa. 335.

The cases cited by the appellee do not sustain the judgment of the court below.

“ An insurance company which has issued a policy upon a parcel of real estate cannot prevent recovery thereon by showing that the title of the insured rested only in parol: ” 29 Am. & Eng. Ency. of Law (2d ed.), p. 810. This is undoubtedly good law if the company accepted the risk knowing that the insured only had a parol title. Again it is good, under all the decisions, if he was in possession under a parol title, enforceable at law or in equity.

In 11 Am. & Eng. Ency. of Law (1st ed.), 313, it is said: “ So a vendee in possession, under a contract for title on payment of the purchase money, has an insurable interest to the full value of the property, even though he could not enforce the contract if resisted.” In support of this proposition a large number of cases are cited, most of them not Pennsylvania cases. Among the authorities, however, we find, Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460 ; Eliott v. Ashland Mut. Fire Ins. Co., 117 Pa. 548, and Columbian Ins. Co. v. Lawrence, 27 U. S. 25. These cases do not sustain the proposition that „a vendee, not in possession, under a parol contract, without payment of any of the purchase money, can recover insurance placed on the property on his representation that he was the sole and unconditional owner, and where the company accepted the risk on such representation.

In Columbian Ins. Co. v. Lawrence, 27 U. S. 25, the court below was reversed for allowing a recovery where the offer for insurance did not state truly the interest of the assured in the property to be insured. In that case it is held that an equitable interest may be insured, but, of course, it is meant an equitable interest susceptible of being enforced either at law or in equity.

In Whitmore v. Ins. Co., 148 Pa. 405, the title rested in parol but it was proven that the insured had an agreement with his sisters and brothers, who were tenants in common ; he had no conveyance, but he entered' upon the property and erected a dwelling house thereon and entered into possession and continued there ever since. This was a title that might have been enforced in a court of equity. *

In Appeal of Lloyd, Huff and Watt, 82 Pa. 485, the vendee purchased the lots and entered into possession and the vendor recognized his purchase by making a deed founded upon it. The question there was whether a judgment entered against the vendee prior to the conveyance to him bound his interest in the land. That case does not decide that he was the sole and unconditional owner of the property prior to the conveyance to him. It simply decides that he had an equitable interest which could merge in the legal estate when acquired, and could in the meanwhile be bound by the lien of a judgment. But in that case the vendee had the full possession of the lan'd.

The appellee also cites Ins. Co. v. Dunham, 117 Pa. 460, but that was a case where the insured had possession and an equitable title. Mr. Justice Clark: (p. 478) said: “We are of opinion, upon a full examination of this case, in the light of all authorities, that Seeley’s title, under his contract, must be regarded as equivalent to a fee simple; that the unpaid purchase money must be treated as an incumbrance upon it; and that, in respect of the insurance, he must be considered the entire, unconditional and sole owner.” And why was that said ? Because there was a binding contract of sale between the vendor and vendee and the latter had entered into full possession and made valuable improvements upon the land and bound himself legally to pay the purchase money. Of course it was not difficult to say that he was the owner.

In Ambrose v. Ins. Co., 19 Pa. Superior Ct. 117, we have a case where the plaintiff agreed to sell a house and a piece of land to a vendee who paid part of the purchase money and entered into possession. Thereafter defendant insured the vendor against loss by fire to said house. The insurance policy provided that it be void if the interest of the insured be other than unconditional and sole ownership. The house was destroyed by fire within the time mentioned in the policy. Held, that the insured could not recover. The reason of this decision is that the insured had conveyed a good equitable title to his vendee and the vendee was, within the meaning of the law, the owner; the vendor simply holding the legal title as security for the balance of the purchase money.

Upon careful consideration of the whole case, as disclosed in the record, and the authorities referred to, and others, we feel compelled to sustain all of the assignments of error.

The judgment is reversed, and judgment is now directed for the defendant on the motion for judgment non obstante veredicto.


author: Rice, P. J.,

text:
    Ridley Park Borough v. United Telephone & Telegraph Company, Appellant.

      Telephone company — Borough—Contract—Sale—Lease—Affidavit of defense.

    In an action by a borough against a telephone company to recover on a penal bond which was conditioned to pay to the borough the penalty stated, if the company should “sell out, or in any manner be controlled by another company,” the statement of claim averred that the company had leased its lines to an individual for the term of 999 years. It was also averred that the object of the lease was to transfer the possession and control of the property to a company or companies unknown to the plaintiff. The defendant in its affidavit of defense denied that it had sold out to any other company, or was controlled by any other company, and averred that the lease was made in good faith and without any design that the possession and control of the company should be transferred to any other company or companies. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Nov. 21, 1906.
    Appeal, No. 191, Oct. T., 1906, by defendant, from order of C. P. Del. Co., March T., 1904, No. 183, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ridley Park Borough v. United Telephone & Telegraph Company.
    Before Rice, P. J., Porter, I-Ienderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a penal hond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the statement of claim, and of the affidavit of defense appear by the opinion of the Superior Court.

      A. B. Geary, for appellant.
    — By the lease to Shattuck the appellant did not “ sell out or in any manner be controlled by any other company: ” Morrison v. St. Paul & Northern Pacific Ry. Co., 30 Lawyers’ Rep. Ann. 546 ; Moneyweight Scale Co. v. Woodward, 29 Pa. Superior Ct. 142; Pullman Palace Car Co. v. Missouri Pacific Ry. Co., 115 U. S. 587 (6 Sup. Ct. Repr. 194).

      March 5, 1907:

      0. B. Dickinson, with him J. £T. Hinkson, for appellee,
    cited : Pullman Palace Car Co. v. Ry. Co., 11 Fed. Repr. 634.
   Opinion by

Rice, P. J.,

As required .by the ordinance granting consent to the .defendant to erect and maintain poles and wires within the limits of the borough, the company gave bond in the penal sum of $1,000 conditioned, inter alia, to pay to the borough the entire amount, if the company should “ sell out or in any manner be controlled by another company.” Subsequently the company demised and leased to Frank R. Shattuck all the lines of telephone and systems of telephone communication owned by the company in certain specified parts, including this borough, of certain specified counties, for the term of 999 years, the lessee agreeing to pay $10,000 fifteen days after the execution of the lease, a similar sum a month later, and thereafter an annual rental of $1.00 on the first day of January in each year during the continuance of the lease. This action was brought to recover the penal sum named in the bond, and the case comes before us upon appeal from judgment entered for want of a sufficient affidavit of defense.

In its statement of claim the plaintiff does not rely solely on the making of the lease as a breach of the condition of the bond, but goes on to allege with regard to it, that the possession and control of the company’s telegraph and telephone system were transferred “under color of a lease, to the said Frank R. Shattuck as agent of and for a certain company or companies, unknown to the plaintiff, the said company or companies being the real though undisclosed transferee in the transaction; ” also that they were transferred to him as “ nominal lessee with the design on the part of the defendant that the possession and control of the same shall pass or be transferred to a company or companies unknown to the plaintiff.” We need not refer to the other averments of the statement of claim, for none of them is stronger than these we have quoted. It is averred in the affidavit of defense that the defendant “has not sold out to nor become in any manner controlled by ánother company,” but “ is in existence, has a full set of officers and directors, and is operating its telephone system in the state of Pennsylvania; ” further that “ it has not sold out its telephone system to Frank R. Shattuck, nor any other person or company, nor has it become in any manner controlled by said Frank R. Shattuck or airy other company; ” nor, quoting further from the affidavit, was the lease of the poles, wires and property “ to the lessee as an agent for any company or companies, nor as a nominal lessee with the design on the part of the defendant that the possession and control of the same should pass or be transferred to a company or companies,” but was made with him “in pursuance of an agreement with him in good faith for the purpose therein mentioned, and for the purpose of better enabling said defendant to operate its telephone system; ” and that the agreement or lease was not executed and carried into effect for the purpose of evading the conditions of the ordinance or bond “ but was made in good faith and for the purposes therein mentioned.” We are unable to agree with the appellee’s counsel that these denials and averments of the affidavit of defense are merely argumentative, °and amount to no more than to say that the lease to Shattuck is not a sale, and the lease to him for the use of some other company is not a sale to a company. They speak for themselves, and we cannot more clearly show the reasons for our conclusion that they are sufficiently responsive to the somewhat inconsistent averments of the statement of claim than by the quotations we have made. Counsel for the appellee state their position very concisely as follows: “ In terms a lease is not a sale, and an individual is not a company. Nor is a sale to an individual for the use of a company a sale to the company directly. A transaction, however, by which the appellant parts with all control for 999 years, and passes the same over to Shattuck for the benefit of another corporation is a violation of the agreement not to sell or in any way part with control.” But as the case is now presented we have no right to assume that the control was passed over to the lessee for the benefit of another corporation. These allegations of extraneous facts are sufficiently denied by the affidavit of defense to exclude them from consideration at this time; and we shall express no opinion as to the right to recover the penalty of the bond in the event of their being established upon the trial of the case. Let it be granted that the plaintiff can recover the penalty for breach of this condition without proof of special damage, because it is so written in the bond. But if the plaintiff may stand on the letter of the bond, so may the defendant, until the extraneous facts alleged in the statement of claim are established hy proof. The lease itself, without more, is not a sale, and manifestly did not vest control in any other company.

Other questions are quite elaborately argued in the briefs of counsel, but we refrain from discussing them until, it shall be necessary to do so. The affidavit of defense was sufficient to prevent summary judgment and to put the plaintiff to proof of other facts besides the mere making of the lease.

Judgment reversed and procedendo awarded.