text:
    Walthour v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Passenger—Alighting from, train.

    1. It is the duty of a carrier of passengers not only to exercise the strictest vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey. On the other hand, the passenger is bound to use reasonable diligence and care in getting off a train.
    2. In an action brought by a passenger to recover damages for personal injuries alleged to have been caused by the sudden starting of a train before she had reasonable time to complete the act of alighting, evidence offered by the defendant to the effect that the train consisted of six cars, that five or six passengers got off and that from thirty-five to forty-five got on the train while it was standing, is not a sufficient basis for asking the court to instruct the jury that if the train “stopped long enough to allow other passengers to get on and off the train in safety, and that while it was so stopped other passengers actually did get off and a number of other passengers actually did get on, then it follows that it stopped long enough for the plaintiff to get off, and the verdict must be for the defendant.”
    3. A passenger who purchases a ticket for a particular station, intending to get off there, may change his mind, and get off at an intermediate station if it be a regular stopping place for the train, and he is entitled to a reasonable time to do so; and it is immaterial if the agent of the company sold the passenger a ticket to some other station than that which he called for and to which he was going.
    Argued April 15, 1909.
    Appeal, No. 35, April T., 1909, by-defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 89, on verdict for plaintiff in case of Anna M. Walthour v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ford, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    3. If the jury believe the testimony that the train in question stopped long enough to allow other passengers to get on and off the train in safety, and that while it was so stopped other passengers actually did get off and a number of other passengers actually did get on, then it follows that it stopped long enough for the plaintiff to get off, and the verdict must be for the defendant. Answer: This point is refused. The question of whether the train stopped long enough to permit the plaintiff to depart from the train, is a question for you under the evidence, and under the instructions I have given you. [1]
    4. If the jury find that the -plaintiff's ticket did not read to Shadyside, and that defendant did not know she expected to get off there, or did not know that she was in the act of getting off, then the defendant cannot be charged with negligence in starting the train before the plaintiff had alighted, and the verdict must be for the defendant. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $1,350. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      James S. Crawford, with him Patterson, Sterrett & Acheson, for appellant, cited:
    McClintock v. R. R. Co., 21 W. N. C. 133; Hurt v. Ry. Co., 94 Mo. 255 (7 S. W. Repr. 1); Chicago, etc., R. R. Co. v. Smith, 110 Tenn. 197 (75 S. W. Repr. 711); Hatch v. Ry. Co., 212 Pa. 29.

      O. P. Metcalf, with him William Metcalf, Jr., for appellee, cited:
    Schmidt v. McGill, 120 Pa. 405; McNeil Co. v. Nimick, 194 Pa. 187; Penna. R. R. Co. v. Lyons, 129 Pa. 113; Dunn v. R. R. Co., 47 Legal Int. 524; Hatch v. Ry. Co., 212 Pa. 29.
    July 14, 1909:
   Opinion by

Henderson, J.,

The two assignments of error call for a consideration of the answers of the trial court to the third and fourth points presented by the defendant. The plaintiff's charge against the defendant was that she was a passenger on one of its regular passenger trains which stop according to schedule at Shady-side, her destination; that while in the act of alighting from the car in which she was riding the train was suddenly started with a jerk before she had reasonable time to alight, as a result of which she was thrown to the ground, and received the injury for which she claimed damages. The principal issue arising from the evidence was whether the train stopped a sufficient length of time to enable the plaintiff to leave the car in safety. Her own evidence and that of witnesses present was to the effect that the train stopped a very short time; that the plaintiff was sitting near the end of one of the cars; that she arose promptly, carrying an umbrella and hand satchel, and went onto the front platform, that while she was descending the steps of the car there was a sudden movement of the train which threw her from the step. In reply to this evidence the defendant called the conductor of the train who testified that the \ train stopped the usual time; that it consisted of six cars; that five or six passengers got off and that thirty-five to forty-five got on the train while it was standing. Other employees of 'the defendant corroborated the statement of the witness that other passengers got off and on before the train started. The defendant’s third point was predicated of this evidence and asked the court to instruct the jury that if the train stopped long enough to allow other passengers to get on and off the train in safety and that while it was so stopped other passengers actually did get off and other passengers did get on, then it stopped long enough for the plaintiff to get off and their verdict must be for the defendant. The argument in support of this proposition is based on the opinion in McClintock v. Penna. R. R. Co., 21 W. N. C. 133. In that case the very question arising in this case was submitted to the jury by the court, and the assignments of error were to comments made by the trial judge on the weight of the evidence offered by the plaintiff and the strong contradictions by the defendant’s witnesses. There was evidence there that the train stopped three or four minutes; that about 100 passengers got on and off the train and that one witness took his little girl into one of the cars after it stopped and came out again onto the platform and then saw the plaintiff standing on the platform of one of the cars from which he attempted to get off after the train started. The language of the Supreme Court had reference to this evidence and was used to apply to that case. It was not intended to be the announcement of a legal proposition that if some of the passengers alighting, from a train got off before it started, anyone who did not alight before it started might have done so safely. The testimony of the witnesses and the circumstances of the case must be taken into consideration. The agility and alertness of some passengers make it possible for them to alight with extreme promptness; others with less physical ability or with less experience in traveling on trains or with the impediment of luggage may not be able to alight as quickly. It does not necessarily follow as a conclusion of law that because four of five persons alighted from a train having six cars that the train stopped long enough to reasonably allow the plaintiff to get off. Whether the train remained at the station long enough to permit the plaintiff to depart in safety was a question of fact for the jury and the court gave clear and full instructions to the jury on that point. “ It is the duty of the carrier of passengers not only to exercise the strictest vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey:” Englehaupt v. Erie R. R. Co., 209 Pa. 182. The plaintiff’s evidence tended to show that this duty was not performed, and the jury could alone decide the question having in view the credibility and interest of the witnesses and their opportunity to observe the situation. The point calls on the court to draw the inferences from contradictory evidence and that from witnesses the weight of whose testimony might be affected by their appearance, their manner of testifying or their opportunity to see. The following language of the court in the charge to the .jury is appropriate and very clear: “If you find from the evidence that the train was stopped for a time sufficient to permit passengers to depart and that Mrs. Walthour delayed in starting to or in departing from the train or if after starting she hesitated and stopped and without notice to or knowledge of the employees of the defendant company attempted as the train was in motion or starting to alight from the train, she cannot recover. That is, if she failed to use reasonable diligence and care in getting off the car or getting off the train she cannot recover.” This was as much as the defendant was entitled to under the evidence on that point.

The appellant’s second proposition is that if the plaintiff’s ticket was not to Shadyside and the defendant did not know that she intended to get off there or did not know that she was in the act of getting off then the defendant cannot be charged with negligence in starting the train before the plaintiff had alighted. The defendant denied that the plaintiff had bought a ticket to Shadyside. The conductor testified that her ticket was not to Shadyside, and the agent at Irwin Station testified that he did not sell a ticket to Shadyside that morning. The plaintiff alleged that she asked for a ticket to Shadyside and supposed she had it and that she saw the name “Shadyside” on the ticket. The conductor admits that he took up her ticket, but does not state what destination it called for nor was any effort made to show that her ticket was to any other station. However that may be, she had a right to get off at Shadyside. It is admitted that that was a regular stopping place for this train, and that other passengers got on and off. She had not evaded the payment of her fare, and if the agent of the company sold her a ticket for some other station than that which she called for and that to which she was going she was not required to remain in the car and go on to that station. A passenger may change his mind and get off at an intermediate station if it be a regular stopping place for his train and is entitled to a reasonable time to do so. What'is sufficient time for this purpose was said in Penna. R. R. Co. v. Lyons, 129 Pa. 113, to be “time to alight safely in the use of reasonable diligence and care, and has regard to all the circumstances which affect the act of getting off a train.” When the train stops to let off passengers it is the duty of the employees having charge of the train to see that all who are getting off have safely alighted before the train is started. If they fail so to do and a passenger who is exercising due diligence and care in getting off is injured because of the starting of the train the defendant is liable for such injury. The case of Hatch v. Phila. & R. Ry. Co., 212 Pa. 29, cited by the appellant, presents a very different state of facts from that under consideration. In that case the plaintiff attempted to get on a moving train and was injured in so doing. He was walking leisurely toward the station while the train was standing there. He did not indicate to any of the train employes that he desired to get on the train, nor did his conduct indicate any intention so 'to do. From anything which could be observed by the trainmen he was not an intending passenger in sight, and it was therefore not negligence to start the train before he got on. If this had not been a regular stopping place for the train the appellant’s argument of want of notice of the intention of the passenger to alight would have weight. That was the situation in Chicago, etc., R. R. Co. v. Smith, 110 Tenn. 197, cited by the appellant. It has no pertinency to the case of a train actually stopping at a regular station and discharging and receiving other passengers. The case was submitted to the jury in a full and fair charge and the instructions by the court on the law were in accordance with the principles established in this state.

The judgment is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Fuller v. Mulhollan, Appellant.

      Contract — Sale—Sale of coal — Failure of title — Damages—Mines and mining.

    Where a certain acreage of coal is sold, and it turns out that a portion of the coal had been previously mined, the measure of the vendee’s damages is the proportion which the coal mined out bears to that which remains in the land with reference to the consideration agreed to be paid; but either party may show peculiar advantages and disadvantages of the part for which the title, failed, but this does not permit evidence of the value of the bargain. If, however, the vendor has been guilty of fraud, damages may be allowed in addition for all the expenses to which the plaintiff has been subjected by the fraud.
    Argued May 4, 1909.
    Appeal, No. 34, April T., 1909, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1907, No. 76, on verdict for plaintiff in case of G. W. Fuller v. Ed Mulhollan.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Reed, P. J.
    At the trial it appeared that the note was given in partial payment of certain coal lands sold by the plaintiff to the defendant. The defendant alleged that he proceeded to work the mines and found that a portion of the coal had been previously mined out by the Standard Coal Company.
    The defendant presented this point:
    1. If the jury believe from the evidence that at the time the contract was signed, the plaintiff, Fuller, stated that no coal had been taken out of the premises described in the article of agreement, except what had been taken out by Womeldurf, and they further find that said statement was not true, but that a portion of said coal had been taken out, and that said statement was the inducing cause of the signing of said contract by Mulhollan and the note in suit, and that he would not have signed it without said statement, then the defendant is entitled tó recoup or set off against the plaintiff’s claim in this case, the value of the coal in place that had been removed at that time, other than that taken out by Womeldurf, and if it exceeds the amount of the note in suit, the defendant is entitled to a certificate in his favor for such excess. Answer: We add, “the damages which he has sustained by reason of these representations made by the plaintiff to him which subsequently turned out to be untrue;” and to that extent we affirm this point. The point itself states the measure of damages to be "“the value of the coal in place which had been removed at that time,” other than that taken out by Womeldurf, “and if it exceeds the amount of the note in suit, the defendant is entitled to a certificate in his favor for such excess.” The contention of the defendant in this respect is that if there were 89-100 of an acre of coal taken out, and it appears from the testimony offered here on the part of the defendant that an acre containing a vein of coal of the heighth of the vein that is testified to here would contain about 8,066 tons, or that the 89-100 acres which if is alleged was mined out by the Standard Coal Company contained 6,500 tons, or that there was probably taken out 6,000 tons. This estimate seems to be based on the supposition that the excavations made by the Standard Coal Company contained solid coal — that it was all coal that was taken out; and you will bear in mind the testimony of some witnesses called here by the plaintiff, who testified that there were clay veins in at -least some of this coal and that about only one-third of it was coal, and as to what part of the coal that related to. Then the defendant further contends that that coal in place was worth from twenty to twenty-five cents per ton, which would amount to from $1,200 to $1,500, and that if you are satisfied that this quantity of coal was taken out and that this was a fair price for it, their damages would be from $1,200 to $1,500. I am unable to agree with the defendant as to the measure of damages in this case. I do not think that would be an accurate measure or standard for measuring the damages in this case. But I instruct you that the standard of measurement in this case would be the relative value which the part taken away, or that part taken away, by the Standard Coal Company would bear to the total quantity of coal in the land. The testimony here — and it seems to be undisputed — is that there was 5 23-100 acres of coal within the limits of the lease as contended for by the defendant; that 1 41-100 of an acre had been taken out by Womeldurf; and that 89-100 of an acre was taken out by the Standard Coal Company. If there were originally 5 23-100 acres, and 1 41-100 acres of that had been taken out by Womeldurf, that left 3 4-5 acres of coal remaining, for which the defendant paid, according to the price agreed upon between him and the plaintiff, $1,500. Now if there was 89-100 of an acre of that coal taken away by the Standard Coal Company, then the measure of the defendant’s damages would be whatever that portion, 89-100 of an acre, would bear to the 3 4-5 acres which it is contended was sold to the plaintiff by the defendant; But in the consideration of this question either party would have the right — and if such testimony has been introduced here it would be your duty to consider it — of recovery for the peculiar advantages or disadvantages of the part lost with reference to the whole quantity sold. You will understand that what is meant, gentlemen, by that is this: That where a man buys, say 3 4-5 acres of coal and discovers after he has put in his operations that he only had 2 T-5 acres, or that he got an acre less than he ought to have gotten according to the statements that were made, that the loss of that acre might be considerably more than its proportion to the remaining acreage; because a man sometimes would pay considerably more in proportion for the larger acreage than he would for the smaller acreage. And therefore you may take into consideration the peculiar advantages or disadvantages to the defendant by reason of the loss of a part of his purchase, in addition to the proportion which it would bear to the whole according to the price agreed upon between the parties. [1]
    Verdict and judgment for plaintiff for $166.70. Defendant appealed.

      Error assigned among others was (1) above instruction, quoting it.

      A. L. Cole, with him Carmalt & Strong, for appellant, cited:
    Hunt v. Gilmore, 59 Pa. 450; Plunkett v. Sauer, 101 Pa. 356; Watson v. City of Philadelphia, 142 Pa. 179; Groetzinger v. Latimer, 146 Pa. 628; Kensington Electric Co. v. City of Philadelphia, 187 Pa. 446; Snyder v. Rainey, 198 Pa. 356.

      M. M. Davis, with him C. Z. Gordon, for appellee, cited:
    Beaupland v. McKeen, 28 Pa. 124; Dumars v. Miller, 34 Pa. 319; McNair v. Compton, 35 Pa. 23.
    July 14, 1909:
   Opinion by

Henderson, J.,

The only question presented on the argument was that relating to the rule for the measure of damages stated by the court to the jury. The instruction on that point was in substance that the proportion which the coal mined by the Standard Coal Company bore to that which remained in the land would be the basis for ascertaining the damage and that this should be fixed with reference to the consideration agreed to be paid. This instruction was in harmony with numerous cases and was well applied in this instance: Lee v. Dean, 3 Whart. 316; Beaupland v. McKeen et al., 28 Pa. 124; McNair v. Compton, 35 Pa. 23; Terry v. Drabenstadt, 68 Pa. 400; Tyson v. Eyrick, 141 Pa. 296; Morris v. Phelps, 5 Johns. 49. The relative value which the part taken away bears to the whole determines the extent of the plaintiff’s injury and this is to be estimated with regard to the price fixed by the parties for the whole. It is, of course, competent to prove that the part to which the title has failed was of greater -or less value than the part actually conveyed, and the correct measure of damages is the value of the part taken in proportion to the value of the part which the vendee gets, the computation being on the basis of the purchase money. Under this rule either party may show peculiar advantages or disadvantages of the part for which the title failed, but this does not permit evidence of the value of the bargain. In the absence of fraud the consideration fixed by the parties limits the amount of recovery whether the contract be executed or executory: Hertzog v. Hertzog, 34 Pa. 418; Bowser v. Cessna, 62 Pa. 148; Burk v. Serrill, 80 Pa. 413; Tyson v. Eyrick, 141 Pa. 296. Where the vendor is guilty of fraud in the conveyance damages may be allowed in addition for all the expenses to which the plaintiff has been subjected by the fraud: McNair v. Compton, 35 Pa. 23. The appellant’s allegation is that a fraud was perpetrated on him and that he is entitled to damages amounting to the value of his bargain. He does not offer to rescind the contract, but seeks to charge the plaintiff with what he alleges to be the actual value of the coal removed by the Standard company. This he estimates to be from $1,200 to $1,500. The latter amount is what the plaintiff agreed to pay for the whole body of coal, to about five acres of which the plaintiff has a good title. As the amount lost was less than one acre the effect of a verdict according to the appellant’s contention would be to give the plaintiff about four-fifths of the coal for nothing; a result which shows the unreasonableness of such a basis for the measurement of damages. If the defendant had shown that the part taken had peculiar advantages or that he had incurred expense and made investments on the belief that the coal was in place the court would have admitted such evidence to be considered by the jury, but as the case was presented the jury was correctly instructed.

The judgment is affirmed.


text:
    Pontefract’s Estate.

      Master and servant — Salesman—Compensation—Commission on sales.

    Where a contract of employment of a salesman provides for a certain salary per year and commissions on sales in excess of a specified sum per annum, and the owner of the business reserves the right to discontinue it or sell it, and subsequently the owner leases the real estate and sells the personal property and the stock of merchandise on hand to a third party who continues the business, the salesman is not entitled to commissions on the sale of the stock to the lessee of the real estate, inasmuch as the sale was not in the line of his employment.
    Argued April 26, 1909.
    Appeal, No. 151, April T., 1909, by defendant, from decree of O. C. Allegheny Co., April T., 1908, No. 3, dismissing exceptions to adjudication in Estate of James G. Pontefract, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to adjudication. Before Over, J.
    The auditing judge found the facts to be as follows:
    John J. Lyons, who presented a claim against this estate, had been employed by the decedent in his business for about sixteen years prior to October 1, 1903, when they entered into a written contract, upon which the claim is founded, the material parts of Which are as follows:
    “Whereas, the said party of the first part is now conducting business in the City of Pittsburgh, Pennsylvania, under the name and style of Joseph S. Finch & Company, and desires to employ the said party of the second part, and upon the terms hereinafter stated, to which said party of the second part agrees.
    “Now this agreement witnesseth: That the said party of the first part does hereby hire and employ said party of the second part, as a salesman and confidential clerk, in the business now conducted by said party of the first part, for the period of five years from the date hereof, provided, however, ■ that said employment be terminated on the death of either of the parties hereto, within that period. And provided further that if the said party of the first part should sell or discontinue his said business within said period, then the employment of the said party of the second part shall cease and determine. Said party of the second part shall faithfully perform such services as salesman and confidential clerk as may be prescribed by the said party of the first part. In consideration of the second part, said party of the first part agrees to pay him as compensation therefor a salary to be computed at the rate of four thousand ($4,000.00) dollars per annum, payable monthly, and in addition thereto to pay him as a commission, a sum equivalent to fifteen centum (15%) of the net profits of said party of the first part arising during the term of his employment, from the manufacture, sale and storage of whisky, in excess of the sum of Twenty-five thousand ($25,000) dollars per annum. It is agreed that the profits of said Finch & Company arising as aforesaid, shall be ascertained by said party of the first part on July 1st of each year during the period of said employment.”
    Under this contract a settlement was made as of July 1,1904, by which Lyons received $2,275.67 as his commissions, being fifteen per centum of the profits out of the business for the entire preceding year, after deducting $25,000, as provided in the agreement; and a settlement was also made as of July 1,1905, by which he, received $10,411.43, as his commissions under the agreement, computed on the profits for the preceding year, and in addition to these amounts was paid a monthly salary of $333.33-J-, including the month of July.
    By agreement dated July 27,1905, to take effect on August 1, 1905, James G. Pontefract, the decedent, leased his distillery property, including the bonded warehouses connected with the same, and all trade-marks and trade-names, to Willis.S. and R. G. Johnson, for a period of twenty years, with option to purchase, and at the same time sold to said parties the personal property used in connection with the business, and the entire stock on hand, including 8,122 barrels of whisky in the bonded warehouses, being all the whisky then owned by decedent, except thirteen barrels which were invoiced to decedent at the same price as those sold to Johnsons, and on August 1, 1905, discontinued the distilling business.
    The price received for said whisky was ten cents per gallon less than the manufacture and wholesale market price, which price was made as an inducement to said Johnsons in connection with the leasing of the distillery and purchase of the business, and the sale was made in connection with the transfer of the business to Johnsons, and would not have been made at that price except in connection with the leasing of the distillery plant.
    Profits amounting to $3,100 were realized from the sales of whisky in the ordinary course of the business during the month of July, 1905, and $50,648.59 from sales of whisky to John-sons, and accrued storage 'for the month of July, 1905.
    The claimant contends that he is entitled to receive from the estate $7,749.79, with interest thereon from August 1, 1905, being a sum equivalent to fifteen per cent on $51,665.26, being the profit realized from the sale to the said Johnsons, and the storage of whisky for the month of July, 1905, after deducting therefrom one-twelfth of $25,000, viz.: $2,083.33.
    The auditing judge disallowed the claim. '
    Exceptions to adjudication with the exception-of one, were dismissed in an opinion by Hawkins, P. J., who entered the following decree:
    And now, to wit, December 31, 1908, this cause came on to be heard, upon exceptions to decree of auditing judge, and was argued by counsel, and upon consideration thereof, it is or. dered, adjudged and decreed that all the exceptions be dismissed except the second, which is sustained, and the decree of distribution is hereby amended by reducing the amount distributed to the heirs by the sum of $183.76, or one-third each, and it is ordered and decreed that said sum of $183.76 be now paid to John J. Lyons, being in full of his claim as per calculation hereto attached, unless an appeal be taken here-from within twenty days.

      Error assigned was in dismissing exceptions to adjudication.

      Edward J. Kent, for appellant.
    When the words and sentences of a contract are plain and clear, as in the contract in this case, the intent and meaning of the parties must be determined by the court from those words and sentences; and without recourse to any extraneous circumstances, acts, conditions or influences; and as far as possible, full effect must be given to every word: Frazier v. Monroe, 72 Pa. 166; White v. Smith, 33 Pa. 186; Burkhard v. Ins. Co., 102 Pa. 262; Allentown School Dist. v. Derr, 115 Pa. 439; Beeson v. Patterson, 36 Pa. 24; Klaer v. Ridgway, 86 Pa. 529.
    There is no magic in the words “sale in the ordinary course of business.” There was no special charm in Johnsons’ money —a sale of the whisky to them was no different than to anyone else: Matchette v. Colburn, 166 Pa. 265.

      J. M. Freeman, of Watson & Freeman, with him Harry F. Starribaugh, for appellee.
    The appellant was hired as a salesman and confidential clerk to aid in carrying on and building up a going business, and is not entitled, under the contract, to any commission on profits except such as arise from sales made in the ordinary course of business.
    The sale of the entire business was not only beyond his authority, but was wholly foreign to his duties and the scope and purpose of his employment.
    So far as we are able to discover, in employment contracts of this nature, where the employee is given a percentage of the net profits, it has always been construed to mean profits arising from the carrying on of the business, and not profits arising from a sale of the entire assets on quitting business, or from an increase in the value of the stock in trade, good will, real estate, or other property in which the capital stock has been invested: Frames v. Mining Co., L. R. (1891) 1 Ch. 140; Rishton v. Grissell, L. R. 5 Eq. Cases, 326; Amsden v. Dunham, 78 App. Div. (N. Y.) 33; Bridgewater Navigation Co., L. R. 39 Ch. Div. 1.
    July 14, 1909:
   Opinion by

Henderson, J.,

The appellant’s claim is under a contract for services “as a salesman and confidential clerk” in the business then carried on by the first party to the contract. The duration of the service was to be five years subject, however, to be terminated by the death of either party within that period or by the sale or discontinuance by first party of his business. An annual salary of $4,000 was provided for which was to be augmented by a commission equivalent to fifteen per cent of the net profits arising during the term of the appellant’s employment “from the manufacture, sale and storage of whisky in excess of $25,000 per annum.” The profits of the business were to be ascertained annually on July 1. These provisions have reference to a business then in operation and to be carried on prospectively for five years during which time the appellant was to render service in the capacity stated in the contract. His right to compensation would have ceased at the end of five years, and a like result was provided for in case of the death of either party or of the sale of the business. In either event his claim for compensation would wholly cease. The appellant’s obligation was to promote the business of the concern and to extend its trade and as an inducement to activity in that direction his compensation was to be increased in proportion to the success of the enterprise. From the nature of the business and the description of his employment it may be presumed that a principal part of his business was to sell the products of the distillery to its customers. It was evidently not in contemplation by the parties that he was to render any service in selling or discontinuing the business. The provision for annual adjustments of the commissions due shows that the profits to which the parties referred were those arising in the ordinary course of the business as it was carried on. The owner had the undoubted right to exercise a discretion as to the time when he would close out his business and his right so to do is plainly reserved in the agreement. With that sale or discontinuance the appellant had nothing to do, and it is not probable that the contracting parties had in mind the payment of a commission on such a sale for it was the privilege of Pontefract to sell in a week or month after this contract was executed if his advantage or inclination moved him so to do, and it is difficult to believe that he intended to give, or that the appellant expected to receive, a commission on such a sale, for up to that time he would have contributed little or nothing to the success of his employer’s business. It is argued that the transaction was not a sale but a leasing of the property and that the orphans’ court started with a false premise in arguing on the theory of a sale. The contract provides both for a sale and a discontinuance of the business, and it is perhaps not material that it was a sale instead of leasing, but the stipulation of facts states very clearly that the transaction was a sale of the business and a leasing of the real estate. It is referred to as a “ purchase of the business ’ ’ and as “the sale of said business.” It is further recited that the first party leased his distillery property and at the same time sold to the lessees' the personal property used in connection with the business and the entire stock on hand and on August 1, 1905, discontinued the distilling business. Taking the appellant at his own words as expressed in the stipulation of facts the decedent sold his business and the nature of the transaction implies as much. The real estate and trade-marks were leased for twenty years with an option to purchase at a fixed price at the end .of that time. The lessees of the property were engaging in the distilling business in the same premises and intended to use the same trade-mark and manufacture whisky of the same quality as that which had been manufactured by the lessor under his special brand. It became important, therefore, for them to take over with the business the . stock on hand in order that the trade and good will of the distillery might be continued. The transaction was in fact a sale of the business in which the decedent had been engaged, and he thereafter ceased to have anything to do with the manufacture of whisky at that place. As this sale was one not in the line of the appellant’s employment it is a reasonable presumption that it was not the intention of the parties that compensation for sales made and attention to the prosecution of the business should include remuneration for services not in contemplation. The appellant was to be rewarded for increasing the business; not for stopping it. The subject referred to in the second specification of error grows out of an evident inadvertence in the language of the decree. The exception which was sustained is the third; not the second, as erroneously stated in the decree. A reference to the exceptions makes it at once apparent that this is what was intended by the court. The third exception was properly sustained, and the decree of the court is in conformity with that conclusion. The careful and earnest argument of the learned counsel for the appellant has not persuaded us that the view of the case entertained by the orphans’ court was erroneous.

The decree is, therefore, affirmed.


author: Beaver, J.,

text:
    McAlpine Street.

      Road laxo — Appeals—Borough—Power of borough attorney■ — Practice, C. P.

    Where an attorney at law signing himself as an attorney for a borough, files a prtecipe in which he directs the jjrothonotary to enter an appeal from an award of road viewers, on the part of the borough, the paper may be regarded as an appeal by the borough, if no question is raised as to the attorney’s authority; but if a property owner files a petition for a rule to strike off the appeal and specifically alleges therein that the attorney had no authority to appeal on behalf of the borough, and such an averment is not denied by an answer to the petition, the court will take the averment as true and will make absolute the rule to strike off the appeal.
    Argued March 2, 1909.
    Appeal, No. 3, March T., 1909, by the Borough of Avoca, from order of C. P. Luzerne Co., Oct. T., 1906, No. 1,231, making absolute rule to strike off appeal in’ the case of McAlpine Street.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off appeal. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.

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

      John R. Reap, borough solicitor, with him Richard B. Sheridan, for appellant, cited:
    Academy of Fine Arts v. Power, 14 Pa. 442; Vankirk v. R. R. Co., 76 Pa. 66; Wilson v. Young, 9 Pa. 101; Danville, etc., R. R. Co. v. Rhodes, 180 Pa. 157; Home Friendly Society v. Tyler, 3 Northampton, 365.

      F. McCormick, for appellee, filed no printed brief.
    July 14, 1909:
   Opinion by

Beaver, J.,

Under the Act of May 24,1878, P. L. 129, viewers were regularly appointed to assess the damages, caused by the change of grade of McAlpine street, to certain persons whose property was affected thereby. Under the power conferred upon them by the act aforesaid, the said viewers awarded the sum of $750 to Bridget Doran, the appellee here.

Although no provision is made in this act for an appeal to the court of common pleas, the Act of June 13,1874, P. L. 283, provides: “That in all cases of damages assessed against any municipal or other corporation, or individual or individuals, invested with the privilege of taking private property for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, whether such assessment shall have been made by viewers otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws, an appeal may be taken by either party to the court of common pleas of the proper county, within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.”

The report of the viewers was filed February 5, 1907.

On February 25, 1907, there was filed in the office of the prothonotary what purports to be an appeal from the award of viewers as follows:

“appeal.

“To Henry Walser, Proth.,

“Sir: Now, 25th October, 1906, John R. Reap, attorney for the Borough of Avoca, appeals from the report of the viewers filed in the above stated case, awarding Bridget Doran, damages for change of grade and change of location of said McAlpine Street, in the sum of seven hundred and fifty dollars, and authorizing the said Borough of Avoca to make payment of said sum. The prothonotary will enter an appeal from the award of the viewers in this case on the part of defendant Borough of Avoca.

“John R. Reap,

“Attorney and Borough Solicitor for defendant.”

■This paper was verified by the affidavit of John R. Reap, borough solicitor.

On November 20,1907, a petition was presented to the court of common pleas of Luzerne county, asking to have the appeal stricken off on the ground that it was not in proper form and that, “ The record does not show that the appeal was authorized by the said borough of Avoca, nor that any authority of court was made allowing the same.” Other reasons are assigned, which it is not necessary to mention.

In form, the appeal, so called, seems to be that of John R. Reap, attorney for the borough of Avoca, but in the same paper he directs the prothonotary to enter an appeal from the award of the viewers “on the part of defendant borough of Avoca.” This might be regarded as an appeal by the borough, if no question as to the authority of Reap, as representing the borough, had been raised. In the petition, it is distinctly alleged, “that said alleged appeal is not in proper or legal form and was entered without proper authority.”

On the same day in which this petition was presented, Reap accepted service thereof, and a rule was “ granted to show cause why the appeal in the above entitled case shall not be stricken off. Returnable to Argument Court.” It does not appear by the record, and is not alleged by the appellant, that any answer was made to this rule. The facts, therefore, contained in the petition upon which the rule was granted are to be assumed as true.

The act of 1874 authorizes an appeal to “be taken by either party to the court of common pleas of the proper county within thirty days.” Reap was clearly not a party, but, inasmuch as in the paper which is filed he directs the appeal to be entered as that of the borough of Avoca, the court might have so construed it, if the authority of Reap to direct the entry of the appeal had not been specifically denied.

The appellee has furnished us no paper-book or brief.

The court below, in making the rule to strike off the appeal absolute, in a short opinion says: “The attorney in this case, without apparent authority, by resolution of council or otherwise, has no beneficial or other interest in the assessment of damages and has no such standing as would entitle him to appeal as such attorney.” The court cites as authority for its decision the Assigned Estate of Graff, Bennett & Co., 146 Pa. 415. That case, however, refers to the right of an assignee as such to appeal to the Supreme Court from an order of distribution of the estate in his hands and would not, as we take it, govern in a case like the present, which is an appeal to the court of common pleas. We think, however, that the conclusion reached by the court below was correct, for the reason that the petition upon which the rule to show cause was granted expressly denied the right of the attorney to represent the borough in entering the appeal, and, in the absence of an answer to the rule to show cause, the court had the right to assume, as it did, that no such authority existed. In that case the attorney, not being a party to the record, had no authority, under the act of 1874, to appeal. The appellant’s brief of argument recites facts which might or might not have moved the court below to a different conclusion in considering the disposition of the rule to show cause why the appeal should not be stricken off, but assuming that the attorney was the borough solicitor and represented the borough in the inception of the proceedings to change the grade of McAIpine street, it does not follow that he was authorized by the borough to appeal on its behalf from the award of damages, and, inasmuch as that authority was questioned, it seems to us that it became his duty to make specific answer to the allegations upon which the rule was founded. Having failed to do this, the court was justified in assuming that the appeal was taken without authority and making the rule absolute.

In Danville, etc., v. R. R. v. Rhodes et al., 180 Pa. 157, it is held that, “An attorney at law is an officer of the court in which he is admitted to practice. His admission and license to practice raise a presumption, prima facie, in favor of his right to appear for any person whom he undertakes to represent. When his authority to do so is questioned or denied, the burden of overcoming this presumption in his favor rests on him who questions or denies his authority, and such person must show by affidavit the existence of facts tending to overcome the presumption before the attorney can be called upon to file his warrant of attorney." If the appellant had made answer to the petition of the appellee for the rule to show cause, denying the allegations of the petition, an issue would have been raised which it would have been incumbent upon the appellee to support by evidence, so as to successfully carry the burden of overcoming the presumption in favor of the regularity of the action of the attorney, but the failure to answer, in accordance with the rule of court, as we understand it, was equivalent to an admission that the facts set forth in the petition for the rule to show cause why the appeal should not be stricken off were true.

The order of the court, making absolute the rule to show cause why the appeal should not be stricken off, is, therefore, affirmed, and the appeal dismissed, at the costs of the appellant.


author: Head, J.,

text:
    Long v. Hamilton, Appellant.

      Justice of the peace — Appeals—Joint defendants.

    Where one of two defendants appeals from a judgment of a justice of the peace, and thereafter the plaintiff files a transcript of the justice’s record in the court of common pleas so as to secure a lien against the nonappealing defendant, and subsequently the appeal is non-prossed, such non-pross does not inure to the benefit of the nonappealing defendant, so as to entitle him to have stricken off the judgment entered against him on the transcript; and this is the case although the plaintiff may have released certain of the real estate of the nonappealing defendant, at the latter’s request, from the lien of the judgment.
    Argued May 13, 1909.
    Appeal, No. 193, April T., 1909, by defendant, from order of C. P. Lawrence Co., Dec. T., 1907, No. 10, discharging rule to strike off judgment in case of Roy A. Long v. Edward M. Hamilton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment. Before William E. Porter, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order discharging rule to strike off judgment.

      A. W. Gardner, with him Chas. E. Mehard, for appellant.
    It is not contended but what one or more of several joint defendants may appeal, and if it is done without the consent of any defendant who does not desire to prosecute the appeal, he can sever, but it is contended that when an appeal is taken by one of two joint defendants it inures to the benefit of both and takes up the whole case subject to the right of the one who does not appeal to sever and thus be relieved of prosecuting the appeal against his will: Gallagher v. Jackson, 1 S. & R. 492; Fotterall v. Floyd, 6 S. & R. 315; Dutton v. Lansdowne Boro., 198 Pa. 563; Emerick v. Armstrong, 1 Ohio, 513; Ewers v. Rutledge, 4 Ohio St. 210; Wade v. Hook, 11 Pa. Superior Ct. 54; Deihm v. Snell, 119 Pa. 316.

      J. Clyde Gilfillan, for appellee.
    Under the authorities in this commonwealth there is no doubt of the right of one joint defendant to take out and prosecute an appeal singly and alone should the others fail or refuse to join with him, and by failing or refusing to join in said appeal the other defendants are concluded and bound by the original judgment: Gallagher v. Jackson, 1 S. & R. 492; Hartman v. Stahl, 2 P. & W. 223; Fotteral v. Floyd, 6 S. & R. 315; Donovan v. Driscoll, 12 W. N. C. 203; Anderson v. Levan, 1 W. & S. 334; LaFitte v. LaFitte et al., 2 S. & R. 107; Bonner v. Campbell, 48 Pa. 286; Jones v. Backus, 114 Pa. 120; Rice v. Foster, 2 W. & S. 58.
    July 14, 1909:
   Opinion by

Head, J.,

Where the judgment of a magistrate has gone against two or more joint defendants, that each one of them is invested with the right to appeal no one will deny. In the exercise of this right the law does not require that each defendant should separately and individually assert it. One appeal in the name and for the benefit of all, subjecting each to the statutory obligation imposed on every appellant, is sufficient. But no man can be compelled by another, though he be a codefendant, to appeal from a judgment against his will. Nor conversely can any citizen be prevented, even by the hostile attitude of his co-defendants, from exercising his right to appeal. A defendant, satisfied that justice has been done, even though the judgment be against him, is not required to camp on the steps of the magistrate’s office to see that, when his codefendant comes to exercise his right of appeal, he himself is not dragged unwillingly into an appellate court and subjected to a liability for the costs of further litigation. Interest reipublicse ut sit finis litium.

These principles, axiomatic though they seem, are supported not only by their own reasonableness but by incontrovertible authority. Their application to the case at bar necessarily results in the conclusion that the learned court below was right in refusing to strike off the judgment.

In an action before a magistrate a judgment was obtained by the plaintiff against a partnership doing business under the name of Frank Torchia & Son and Edward Hamilton, the pres-., •ent appellant, as joint defendants. Nothing was at any time afterwards done by Hamilton to indicate his desire or intention to appeal from that judgment. Within the required time, however, a member of the firm, the other defendant, appeared before the magistrate, demanded a transcript for the purpose of appeal, made the oath that the appeal was not intended for delay, etc., and furnished security “for the payment of all costs accrued or that may be legally recovered against affiant.” After the time allowed for taking an appeal had expired and nothing had been done by Hamilton, this appellant, the plaintiff, took a transcript of the judgment and filed it in the common pleas court for the purpose of making it a lien against the property of Hamilton who had not appealed.

Some months later Hamilton, apparently recognizing the validity of the judgment and the lien incident to it, applied to the plaintiff to secure a release of that lien from certain real estate which he desired to sell. This release the plaintiff executed. Satisfied that his debt was secured by his judgment against Hamilton, the plaintiff neglected to prosecute his claim as against the party who had appealed, and in due time a judgment of non pros, was entered against him because of his failure to file a declaration. The other defendant, Hamilton, then took the position that although he had not appealed, had made no affidavit, had given no security for costs, the appeal, taken by his codefendant, necessarily brought his case into court, and that the judgment of non pros, inured to his benefit. He therefore filed his petition praying the court to strike off the judgment entered against him on the transcript from the magistrate's record, and the refusal of the court to do so constitutes the sole assignment of error.

In Hartman v. Stahl, 2 P. & W. 223, an action of ejectment was brought against three defendants. The cause was arbitrated under the act of assembly and an award made in favor of the plaintiff. Elizabeth Hartman, one of the defendants, only entered an appeal, took the oath required, and entered into the recognizance to prosecute the appeal with effect, etc. When the appeal came on for trial it was sought to have the jury sworn as to all three original defendants, and parol testimony was offered to show that the appeal, actually taken by one, was intended to be for the benefit of all. In disposing of that question the Supreme Court, Rogers, J., said:

“If one of several defendants make the affidavit required by the act regulating arbitrations, and the recognizance be for all of the defendants, the appeal will stand for all. But if either of them come into court and desire to be severed, he may be severed, and the appeal will go on in the name of the others. Further than this we cannot go. Elizabeth Hartman took the oath, and entered into the recognizance with bail for herself alone; it, therefore, is but an appeal for one, and amounts to a severance, as much so as if her codefendants had come into court and disclaimed the appeal. It cannot be successfully contended that the bail would be liable beyond the recognizance, which stipulates for one of the defendants, without naming the others, or even referring to them; nor would it be in the power of the court to extend the liability of the recognizance beyond their agreement. The bail may be willing to be bound for Elizabeth Hartman, and very unwilling to answer for the act of others. It is alleged that the appeal is for the benefit of all, and that the consent of the other defendants will be presumed. If this were so, yet it will not dispense with the provisions of the act of assembly which prescribes that an oath shall be taken and a recognizance given for all. Here the oath was taken by one, and for one, and the recognizance binds her. only and her bail.”

This language is so plain, so forceful, so clearly decisive of the question before us, that it leaves no room for further dis-. cussion. The case has been frequently cited, and never to our knowledge has the soundness of its reasoning been even criticised.

The assignments of error are overruled and the order or decree of the court below is affirmed.


author: Beavee, J.,

text:
    Strickler, Appellant, v. McElroy.

      Corporations — Directors—Illegal sale of stock — Statute of limitations.

    In an action by a stockholder against directors of a corporation to recover a share of profits on stock illegally sold by the directors to themselves at par, and thereafter sold at an advance, the statute of limitations is not a bar where it appears that the suit was brought on March 22, 1907, that the certificates were dated March 13,1901, and that the stock was not actually delivered to the defendants or paid for by them until April 2,1901.
    Argued March 9, 1909.
    Appeal, No. 11, March T., 1909, by plaintiff, from judgment of C. P. York Co., April T., 1907, No. 77, on verdict for defendants in case of Eli S. Strickler v. Harry McElroy et al., Executors of the last Will and Testament of Henry McElroy, deceased, et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover a share of profits on stock alleged to have been illegally sold to the defendants by themselves as directors, and thereafter resold at a profit. Before Bittenger, P. J.
    At the trial the plaintiff made the following offer:
    Mr. Niles: If the court please, I now offer in evidence the certificates of stock Nos. 7,8,9 and 10, being certificate No. 146 to Henry McElroy for 105 shares; 147 to Henry Birnstock for twenty-three shares; 148 to John W. Filbey for twenty-two shares, and 149 to Howard L. Keller for twenty-two shares. For the purpose of sustaining the issue on the part of the plaintiff.
    Mr. Black: It is objected to, that it appears from the face of the certificates offered, and from the minutes of the directors of March 12, 1901, already in evidence, that the action of the corporation by its board of directors, authorizing the issuing of these certificates, was taken more than six years before the beginning of this suit; and that the certificates were executed for the use of these defendants more than six years before the beginning of this suit.

      And it is further objected, that it appears from the uncontradicted evidence already in that Eli Strickler was offered a part of these 172 shares of stock before they were issued by the board of directors to these defendants, and refused to take any part of them.
    It is further objected, that it appears from the evidence already in that Eli Strickler, not later than January, 1903, had actual notice of the fact that these defendants held the stock in question, and for years after that time acquiesced in, and consequently ratified the issue of the stock to these defendants.
    The Court: We reject this offer for the reasons stated in the objections, — on the plea of the statute of limitations, and sufficient has not been shown to raise the bar of the statute of limitations; and we seal an exception for the plaintiff. [2]
    Mr. Niles: The plaintiff respectfully offers in evidence in connection with the testimony already in the case, the certificates Nos. 146, 147; 148 and 149, being exhibits Nos. 7, 8, 9 and 10; for the purpose of sustaining the issue on the part of the plaintiff, and showing, in connection with the testimony already in, that the defendants, as directors of the Wrights-ville Hardware Company, by action by them in pursuance of an arrangement made between them on March 12, 1901, and on March 13, 1901, issued certificates of stock dividing up the 172 shares of stock of the authorized capital of 2,500 shares, unissued up to that time, among themselves; and that they did not consummate the transaction, or give any notice to the plaintiff, or to any of the stockholders, in regard thereto, until April 2, 1901, at which time the whole 172 shares were paid for by the check of Henry McElroy, one of the defendants, for $1,720. For the purpose of sustaining the issue on the part of the plaintiff, and showing the liability of these defendants to him for his proportion of the profit realized by them from the 172 shares of stock.
    Mr. Black: This offer is objected to for the same reasons as those set forth in the objection to the last offer of these stock certificates.
    The Court: The offer is rejected, and an exception sealed for the plaintiff, upon the objections made by the defendants’ counsel, for the reasons stated in the objections; and for the reason that the plea of the bar of the statute of limitations has not been raised by sufficient evidence mentioned in the offer, or by any other evidence in the case. [3]
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned among others were (2, 3) rulings on evidence, quoting the bill of exceptions.

      Henry C. Niles, with him Chas. A. May and George E. Neff, for appellant.
    The statute of limitations could not begin to run before April 2, 1901. The action was brought March 22, 1907, ten days before the expiration of the six-year limit.
    Plaintiff had an inherent right to the 172 shares of treasury stock in the proportion of his 152 shares to the 2,328 total outstanding stock: Reese v. Bank of Montgomery County, 31 Pa. 78; Morris v. Stevens, 178 Pa. 563; Electric Co. of America v. Edison Electric Illuminating Co., 200 Pa. 516.
    Where a wrong is committed privately by a person in a fiduciary capacity and is actively concealed, or where the person wronged has no means or opportunity of knowledge, the statute only begins to run from the time of discovery or at most when discovery was possible: Harrisburg Bank v. Forster, 8 Watts, 12; McDowell v. Potter, 8 Pa. 189; Ferris v. Henderderson, 12 Pa. 49; Bricker v. Lightner, 40 Pa. 199.

      J. S. Black and N. 8. Ross, with them H. C. Brenneman, for appellees.
    To prevent the barring of an action by the statute of limitation, on account of fraud, it must appear that the fraud not only was not discovered, but could not have been discovered with reasonable diligence: Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136; Com. Title Ins., etc., Co. v. Folz, 23 Pa. Superior Ct. 558; Franklin v. Franklin, 22 Pa. Superior Ct. 463.
    The learned court, at the trial of the case, with the plaintiff’s statement before him (which expressly averred the culmination of the act of the defendants, upon which the suit was based, as March 12 and March 13, 1901, and further averred fraud in its execution and subsequent concealment), was justified in his ruling that, unless the plaintiff would prove such fraud and concealment by defendants as would prevent the plaintiff from ascertaining the facts if he exercised the means within his reach, the statute of limitation would begin to run from the date of the commission of the alleged wrongful act and not from the time it was discovered: Guarantee Trust & Safe Deposit Co. v. Farmers’ & Mechanics’ Nat. Bank, 202 Pa. 94; Noonan v. Pardee, 200 Pa. 474; Com. v. Donnelly, 36 Pa. Superior Ct. 619; Link v. McLeod, 194 Pa. 566; Smith v. Blackley, 198 Pa. 173.
    July 14, 1909:
   Opinion by

Beavee, J.,

The plaintiff, who was a stockholder, sought to recover in the court below from the defendants, who were directors, or representatives of a director, of the Wrighfsville Hardware Co., his proportion of the difference between the price paid for certain stock of the corporation purchased by the defendants as individuals from themselves as directors at par, and that at which it was subsequently sold by them, on the ground that the action of the directors was a fraud upon the rights of the other stockholders.

In the trial of the cause there were offered in evidence certain certificates of stock representing this transaction. The offer was rejected by the court on the ground that the certificates were dated March 13, 1901, and the suit, in which the recovery was sought to be made, was brought March 22, 1907, more than six years after the date of these certificates. When the offer was first made, there was no intimation therein that the plaintiff would show later that the certificates were not delivered to the defendants nor paid for by them until April 2 following their date. It subsequently appeared, upon the examination of one of the defendants, who was called by the plaintiff as a witness for cross-examination, that, although dated March 13, the certificates were not delivered to the defendants nor paid for by them until April 2, the sale being completed by the delivery of, and payment for, the stock at that time. The offer was then made, in which it is distinctly stated “that they (the defendants) did not consummate the transaction, or give any notice to the plaintiff, or to any of the stockholders, in regard thereto, until April 2, 1901, at which time the whole 172 shares were paid for by the check of Henry McElroy, one of the defendants, for $1,720, for the purpose of sustaining the issue on the part of the plaintiff, and showing the liability of these defendants to him for his proportion of the profit realized by them from the 172 shares of stock.”

When this evidence was first offered, it did not appear that the sale was not completed as of the date of the certificate and the court may have had reason to assume that that day was the actual date of the sale. The plaintiff was probably unable to accompany the offer by what would be subsequently proved as to the time that the sale was completed, in view of the fact that the testimony was elicited from one of the defendants as on cross-examination, and, therefore, it is difficult for us to determine that either the plaintiff could have made his offer more full or that the court was not justified, as it was made, in rejecting it. That, however, is a question of little practical value, because the subsequent offer raised the entire question of the admissibility of these certificates of stock as evidence under the facts, as they were finally brought out by the cross-examination of one of the defendants, as stated.

It appears to us that this last offer was admissible for the reason that these shares of stock did not become the property of the defendants, until they were delivered by the proper officers of the corporation and paid for, and, inasmuch as this time was less than six years from the date of the writ, the offer was proper and should have been received. It seems to us that, if the plaintiff had brought his action on March 14, 1901, an entirely proper defense to it would have been the fact that no stock had been transferred to the defendants and no money paid-by them, and that, therefore, no sale had been completed. It would have been impossible for the plaintiff to have maintained an action at law for the excess of the value of the stock above the price paid therefor, before the consummation of the transaction, which took place on April 2, 1901. The plaintiff was, therefore, entirely within his rights under the statute of limitations in bringing his action at any time within six years from April 2, 1901.

The charge of the court is also assigned for error, in which it is said, as the conclusion thereof: “Therefore, we have excluded his (plaintiff’s) testimony as to the issuing of these shares of stock. That ends his contention in this court to recover in this case, I presume, as he has failed to overcome the bar of the statute of limitations. It will be your duty, on account of the plaintiff not being able to sustain his claim, to render a verdict in favor of the defendants.”

Holding as we have already said, that the sale was not completed and the ownership of the stock transferred from the corporation to the defendants until April 2, the court was in error as to the application of the bar of the statute of limitations. The third and fourth assignments of error are, therefore, sustained-.

Judgment reversed, -with a new venire.


author: Morrison, J.,

text:
    Panezzi’s Estate.

      Decedents' estates — Claim against — Set-off—Judgment—Check—Evidence.

    Where a woman presents a judgment note for $2,000 as a claim against a decedent’s estate, and the note is undisputed, but the executors offer to set off a check paid by the decedent to the claimant shortly before his death, it is reversible error for the court to find from certain statements made by the claimant as a witness, that the check should be applied toward the payment of the judgment, where it appears that such statements were made under a misapprehension resulting from the claimant’s imperfect knowledge of English, and her other testimony shows conclusively that the check was received by her as a repayment of money which the decedent held for her as an investment, and that the check had nothing whatever to do with the judgment.
    Argued April 22, 1909.
    Appeal, No. 150, April T., 1909, by Julia Pasquale, from decree of O. C. Westmoreland Co., Aug. T., 1908, No. 59, dismissing exceptions to adjudication in Estate of Sylvester Panezzi, deceased.
    Before Rice, P. J., Porter Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to adjudication. Before Steele, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      James B. Weaver, for appellant.

      H. E. Marker, with him C. B. Hollingsworth, for appellee.
    July 14, 1909:
   Opinion by

Morrison, J.,

The sole question raised in this appeal is whether the learned judge of the court below erred at the audit and distribution of said estate in holding that a check, dated January 30, 1907, for $1,000, drawn by Sylvester Panezzi, in favor of the appellant, should be applied as a payment on one of the judgments which the appellant held against the decedent and his real estate at the time of his death. There were two judgments, the first, No. 312, August Term, 1907, for $1,000, with interest from March 20, 1905; the second, No. 313, August Term, 1907, for $1,000, with interest from July 31, 1906. There was nothing on the check indicating that it was a payment on account of said judgments, or either of them, nor was there any receipt or evidence whatever tending to show that the check was a payment on either of said judgments, except the testimony of the appellant. She was called and sworn and made a general witness on behalf of the estate, and, therefore, she became a competent witness. The learned court says: “A fair consideration of her evidence leads us to believe that the payment was entitled to be a credit on the two judgments held by Julia Pasquali. This will be done.”

An examination of the testimony of Julia Pasquali leads us to a different conclusion. It is manifest from her testimony that she spoke the English language imperfectly and that her knowledge of the same was limited. It is true that the testimony she gave the first time she was on the stand might possibly bear the inference that the $1,000 check should be applied as a payment on one of the judgments. But when she was recalled on a subsequent date and examined by her own counsel and cross-examined by both of the attorneys for the estate, and also by the learned court, we are strongly impressed with the idea that she never intended to say that the $1,000 was a payment on either of the judgments.

Julia Pasquali recalled. Examined by Mr. Marker: “Q. Did Sylvester Panezzi ever owe you anything outside of these two judgments and these other claims; after these judgments were given to you, did he ever owe you anything outside of these two claims? A. No. Q. He never did? The Court: He paid you $1,000 on account of those notes? A. I gave it to him; that was money he owed me. Q. On the $2,000 he gave you $1,000? A. No. Q. And then he gave you $1,000 there? A. No, sir; he didn’t give you $1,000.” Mr. Hollingsworth objects to this witness testifying in her favor. The Court: Objection overruled; exception. Mr. Weaver: I show you check for $1,000, dated January 30,1907, before he died; what was that given to you for? Mr. Marker objects to this as incompetent and irrelevant. The Court: The counsel have asked this witness whether the two judgments and two small claims were the only matters in which Sylvester Panezzi was indebted to her, and whether he owed her either at the time of the judgment, or since, any other sums; we are of the opinion that they have already gone into this matter and that the testimony is competent; exception to administrator. “Q. That check was given to you? A. Yes, sir; it was given to me, for he was put money in the Loyalhanna Brewery and when we put them in together and when we got them back we separate them; we was keeping our money together; this money he got back is money from the Loyalhanna Brewery when the brewery was sold; he got $2,200; he give me $1,000, and $1,200 himself and that $2,000 on judgment note is extra; I had it in the spring recorded here before he died; this is his writing and that is my writing; you can prove the other two notes; he was in my house and I boarded him and I was housekeeper and we was put together all our money; he has no family; his mother and brother all in the old country; I keep boarder to help him.”

Cross-examination by Mr. Marker: “Q. You were in his house? A. Yes, sir, we built the house together. Q. Who furnished the money? A. He furnished the money and I furnished the money, too; you can ask everybody when I was working out.”

Examination by Mr. Hollingsworth: “Q. When was it you furnished the money for the brewery? A. When the brewery started in the new. Q. Did you have the same stock in your name? A. No, I am married and my man run away and I cannot keep it in my name and I was scared and it was in his name; the house and lot was in his name and the brewery was in his name. Q. Did you have a note for $1,000; what did you have to show for that transaction, for this $1,000, you say you put in the brewery? A. I ain’t got no note; if he wasn’t honest I can’t prosecute him. Q. You had notes for the $2,000? A. Yes, sir, before this. Q. Why didn’t you get a note for this other $1,000 that you say you put in the brewery? A. He gave me the money then. Q. It had been in the brewery a long time? A. Yes, sir. Q. And you had no note for this? A. No, because I trust him; but he didn’t have the property paid; he was in the building and loan, and after he was paid out in his business he make me these two notes. The Court: Q. When was the Loyalhanna Brewery stock taken, what year? A. 1902, when he was beer agent. Q. How much money did you give him in the brewery in 1902? A. $1,000 and that he gave me back. Q. I want to know what you gave him the other $2,000 for that he gave you a note for? A. That was all together and he gave me $2,000; I was housekeeper. Q. Did he give you that $2,000 on the judgments for what he owed you up to that time? A. Because I was his housekeeper six years and I always used my money for the house. Q. Did that $2,000 for the notes cover everything? A. Yes, sir. Q. Money and everything? A. Yes, sir. Q. That included for housekeeping and money given for the brewery and everything? A. No, the money for the brewery was extra; he was give it to me, money for I was keep that note besides this for guarantee for myself if he would die.- Q. He would hardly likely give you $2,000 for keeping house six years; wasn’t that for everything? A. Everything. Q. Brewery and everything? A. Brewery is extra.”

Examination by Mr. Hollingsworth: “Q. When you went into that brewery you got $1,000? A. Yes, sir. Q. Didn’t the brewery sell out two for one ? A. Well,-Q. When he got that why didn’t you get $2,000 back? A. Because, I didn’t want it; for he helped me and I helped him.” A. Abbattichio, recalled.

Examined by Mr. Weaver: “Q. Mr. Abbattichio, you were personally acquainted with Sylvester Panezzi in his lifetime? A. Yes, sir. Q. Did he or not have stock in the Loyalhanna Brewery? A. Yes, sir. Q. Do you know how much? A. I don’t know how much; he got back double when the brewery sold out. Q. Do you know about what time that occurred? A. I have forgotten.”

Examination by Mr. Hollinsworth: “Q. It was along in the fall some time? A. Yes, sir.”

Examination by Mr. Marker: “Q. Wasn’t that done before license court, that you got the money for the Loyalhanna Brewery? A. I don’t remember. Q. Wasn’t it in March of the year? A. I don’t remember. The decedent owed the society $10.00, leaving $100 to be paid to the administrator.”

A consideration of the above testimony, we think, makes it quite clear that the appellant did not consider that the decedent was indebted to her for the $1,000 that went into the brewery stock; she only expected it returned in case of a sale of the stock. The stock was all in the name of Sylvester Panezzi and if $1,000 worth of it belonged to the appellant, then he held it as trustee for her. It is quite apparent that when she was on the stand and examined the first time she did not have in mind the $1,000 which went into the brewery stock at all. According to her testimony she had given the money to the decedent for investment in the brewery stock and on January 30, 1907, he returned to her by check $1,000 and she considered that matter closed. But when the check was shown to her and her attention directed to the $1,000 transaction, the vigorous examination by the two attorneys for the estate and by the learned judge of the orphans’ court only brought out with greater clearness, considering her broken English, that nothing had been paid on the judgments.- Moreover, the testimony tends to show that the appellant ought to have had more than $1,000 out of the brewery transaction, but she said she was satisfied with the $1,000. We consider it manifest error in the learned judge to apply the $1,000 as a payment on one of the judgments. As we have already said there is not a particle of evidence sustaining that application of the $1,000, except the inferences drawn by the court from the testimony of the appellant. But taking the whole of her testimony and giving it a fair and impartial consideration, it is impossible for us to agree with the conclusion reached by the learned judge below.

The real question is, did the appellant have $1,000 in brewery stock in the name of the decedent, and did he pay that back to her on January 30, 1907, by the check? The validity of the judgments is not questioned. No creditor is attacking them as fraudulent and nobody is asking that they be opened. On the facts disclosed by the evidence, if the decedent gave her the judgment notes she is entitled to have the judgments entered thereon paid in full out of the decedent’s estate.

The assignments of error are sustained and the decree is reversed, and it is now ordered and decreed that the appellant’s judgments, interest and costs, be paid out of the decedent’s estate, together with the costs of this appeal.


text:
    Harmer Township Road.

      Road law — Vacation of road — View—Review—Act of June 13, 1836, P. L. 551, secs. 18, 19 and 25 — Continuance.
    1. There may be a review of a proceeding to vacate a road laid out and confirmed, but not opened, upon a petition of less than a majority of the original petitioners of the road. The requirement of a majority of the original petitioners for the road to give the court jurisdiction to appoint viewers for its vacation has no application whatever to the appointment of reviewers.
    2. In a road proceeding the court has the power during a September term before an order for a review has expired, to extend the time for the report of the reviewers to the November term.

      Argued May 6, 1909.
    Appeal, No. 205, April T., 1909, by W. B. Rath Township of Harmer, from order of Q. S. Allegheny Co., March T., 1908, No. 5, confirming report of viewers against the Vacation of Road in Harmer and Springdale Township and Cheswick Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Shaper, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to report of viewers and confirming the report.

      B. A. Kennedy of Kennedy, McVicar & Hazlett, for appellants.
    There can be no review of a proceeding to vacate a road laid out and confirmed, but not opened, except upon a petition of a majority of the original petitioners for the road: Augusta Twp. Road, 17 Pa. 71; Vernon Twp. Road, 70 Pa. 23.
    The requirement that the report must be made to the next term is without exception and mandatory: Sewickley Twp. Road, 26 Pa. Superior Ct. 572; Ross Twp. Road, 5 Pa. Superior Ct. 85; McCandless Twp. Road, 110 Pa. 605.

      Geo. E. Alter, of McKee, Mitchell & Alter, with him Edmund W. Arthur, for appellees, cited:
    Ross Twp. Road, 5 Pa. Superior Ct. 85; Knox Street, 12 Pa. Superior Ct. 534.
    July 14, 1909:
   Opinion by

Morrison, J.,

At December Sessions, 1906, upon petition of sixty-four persons, the public road in question was laid out, but it was never opened. At March Sessions, 1908, the proceeding in this case was begun by a petition signed by 105 persons, and a majority of the signers of the original petition were embraced in said number. This petition averred that the road was useless, inconvenient and burdensome, and prayed that the same be vacated and annulled. Viewers were appointed and ordered to report at the next term, but on May 2, 1908, on motion, the court extended the time for filing the report of viewers to June Sessions, 1908, and subsequently a report was duly filed, signed by two of the viewers, in favor of the vacation, and another report, signed by one viewer, against the vacation of the road. On September 12, 1908, during the September Sessions of the court below, a petition was filed by thirty-two persons, fifteen of whom (being less than a majority) were signers to the original petition for the road, praying for a review of the vacation proceedings, and same day an order to view was issued to viewers requiring them to report at next (October) term of court. Petitioners favoring the vacation of the road thereupon filed a motion to quash and vacate the proceedings for a review, alleging that the same were illegal because the petition for review was not signed by a majority of the original petitioners for the road, and further that the proceedings to vacate were not subject to review. This motion was argued on October 2, 1908, and the court discharged the rule and granted an exception to the original petitioners. On October 3,1908, being the last day of the September Term, on motion, the time for filing the report of reviewers was extended until the November Term of court; on October 31, 1908, being the last day of the October Term, the time for filing the report of the reviewers was, on motion, extended to the December Term, and on December 5, 1908, being the last day of the November Term, the time for filing the report of reviewers was, on motion, extended until the January Term, 1909, and the report of reviewers favoring the opening of the road, instead of vacating it, was filed at January Sessions, 1909, and at the same time exceptions were filed thereto, alleging that the report of the reviewers, not having been filed at the next sessions of the court after the issuing of the order to view, was illegal and void and should be set aside, and that the various extensions of time allowed for the filing of said report were without authority of law and, therefore, void. These exceptions were subsequently argued in the court below and dismissed and the report of the reviewers against the vacation of the road was confirmed in an opinion filed by Hon. John D. Shakeb, judge of the lower court, and his opinion and order of confirmation were duly excepted to on behalf of the original petitioners.

The first proposition contended for by counsel for appellants is that, “there can be no review of a proceeding to vacate a road laid out and confirmed, but not opened, except upon a petition of a majority of the original petitioners for the road.” In support of this proposition the counsel cite the Act of June 13,1836, P. L. 551. But from that act we reach precisely the opposite conclusion. Section 18 of that act (p. 558) reads: “The courts aforesaid shall, within their respective counties, have authority, upon application to them by petition, to inquire of and to change or vacate the whole or any part of any private or public road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient or burthensome, and the said court shall proceed therein by views and reviews, in the manner provided for the laying out of public roads and highways.”

Section 19. “Roads laid out and confirmed as aforesaid, but not opened, may be vacated and annulled upon the petition of a majority of the original petitioners for the said road, resident within the respective county, in the same manner as other roads may be vacated: Provided, That no person residing or owning land along the route of such road, shall in such case be a viewer or reviewer.”

Section 25. “In all cases of views for any purpose mentioned in this act, the respective court shall, on petition of any-person interested, direct a second view or review for the same purpose: Provided, That application therefor shall be made at or before the next term of the said court, after the report upon the first view.”

In our opinion, these sections of the act of 1836 so completely answer the appellant’s proposition that argument is unnecessary. It seems to us that the requirement of a majority of the original petitioners for the road to give the court jurisdiction to appoint viewers for its vacation, has no application whatever to the appointment of reviewers. We discover nothing in the act to sustain the position that there cannot be a review without a petition signed by a majority of the petitioners for the road. The three sections of the act above quoted plainly indicate that after a proceeding to vacate an unopened road has been commenced, it shall then be carried on as expressed in sec. 25, where it is said the court shall in all cases of views for any purpose mentioned in this act, on petition of any person interested, direct a second view or review for the same purpose. It has often been decided by the Supreme Court that a review is a matter of right provided the petition shall be presented at or before the next term of the said court, after the report upon the first view, and it has also been decided many times that the court may, when the view and review are adverse, adopt and confirm either: Road in Bucks County, 3 Whart. 104; Buckwalter’s Road, 3 S. & R. 236; Paradise Road, 29 Pa. 20. It is not contended in the present case that the petition for a review was not presented at the.proper time. We, therefore, hold that the court did not err in granting a review nor in confirming the report of the reviewers.

As to the appellant’s second proposition, we are equally clear that it presents no reversible error committed by the court below. The exact proposition of the appellant’s counsel is: “The court had no power during the September Term to extend the time for the report of reviewers to the November Term.” It will be recalled that the petition for a review was presented September 12, 1908, and the viewers then appointed were ordered to report at next term of court which would be the October Term. For reasons not necessary to comment upon at length, but which were contributed to by appellant’s counsel, and which were satisfactory to the court, it became apparent on the last day of the September Term that the reviewers could not report at the October Term which began on October 5. Therefore, the court extended the time for making the report to the November Term, and on the last day of the October Term the learned court for satisfactory reasons extended the time for the reviewers to report to December Term and on the last day of the November Term, the court extended the time for filing the report of the reviewers to the January Term, 1909. The learned counsel for appellants seem to concede that if the order made on October 3, 1908, being the last day of the September Sessions, extending the time for filing the report of reviewers to November Term, had been made on October 5, the first day of the October Term, instead of on the last day of the September Term, it would have been regular. We do not think there is any decision or rule of law supporting this contention. We cannot see that any possible injury could result to anyone by the order made by the court. It would be docketed and would operate as notice to all interested parties that the report would not be made at the October Term but they might look for it at the November Term, and the same reasoning applies to the subsequent extensions. Ross Twp. Road, 5 Pa. Superior Ct. 85, is cited, but all that we understand that case to decide, on this question, is that the extension of time cannot be made after the term at which it was originally returnable. In re Road in Salem Twp., 103 Pa. 250, Mr. Justice Sterrett, delivering the opinion of the Supreme Court, said: “The third section of the general road law of 1836 requires the viewers to make their report at the next term or session of the court after'their appointment. The object of this requirement is neither doubtful nor unimportant. As has been repeatedly intimated, the act means just what it says. It was intended to fix definitely a time when all parties interested may have an opportunity of examining the report with a view of excepting thereto, or taking such other action as may be deemed necessary. If for any sufficient reason the report cannot be made to the next term, the proper course is to continue the order to view and make it returnable to the next succeeding term; but this must be done before the order has expired, that is, before or during the session of court to which it is returnable. If that term is permitted to pass without the presentation of the report, or an order extending the time for making the same, the order to view becomes, ipso facto, inoperative, and with it the authority of the viewers ceases.”

In re Opening of Knox St., 12 Pa. Superior Ct. 534, we affirmed Bbitler, J., in holding, “If for any sufficient reason, the report cannot be made to the next term, the proper course is to continue the order to view and make it returnable to the next succeeding term; but this must be done before the order has expired; that is, before or during a session of the court to which it is returnable.”

In re Road in Stowe Twp., reported in 31 Pittsburg Legal Journal (O. S.), p. 242 (not reported in the state reports), we find the following: The petition was presented to the September Sessions, and Reno, Robb and McBride were appointed viewers. During the sessions, two others were substituted for Robb and McBride. On the last day of the same sessions, the substitutes having refused to act, the court reappointed Robb and McBride and ordered, “The order to view is continued to the next term.” Nothing was done at the next sessions, but the report was duly made at the March Sessions. It was assigned as -error to approve the report, the same not having been made to the next sessions, to wit: the December Sessions. The Supreme Court, per curiam, said: “When the court made the order of December 4,1880, we will not assume it intended to do a useless or foolish thing. The order previously made and then in force was returnable to the December Term. Some of the viewers having refused to act others were appointed in their places, and the very purpose of the order of December 4 was to extend the life of the order to view and give time for the viewers to take the necessary action. Hence, the order made ‘to continue to the next term’ must be construed to mean the next term after which it was then returnable. This removes all the difficulty and sustains the action of the court. Judgment affirmed.”

It seems to us these authorities conclusively settle the question that the order to continue the time for making the report to the next term may be made before the term to which it is returnable or during said term, but not after. Now that was precisely what was done in the present case. Each extension of time for the reviewers to make their report was granted on Saturday before the term to which the report was returnable which commenced on the following Monday. There is nothing illegal in this and nothing to mislead or harm any interested party.

Counsel for appellant calls our attention to Harris v. Mercur, 202 Pa. 313, where it is held: “When a statute fixes the time within which an act must be done, the courts have no power to enlarge it although it relates to a mere question of practice.” Counsel contends that the road law requires the report to be made to the next term and that the court has no power to extend the time for making the report. In view of the long line of well-considered cases in the Supreme Court recognizing the power of the quarter sessions court to extend the time for viewers to report to the term succeeding the one to which the order was made returnable, we feel warranted in holding that Harris v. Mercur has no application to the question we are considering. In legal effect, an order extending the time for viewers to make their report beyond the next term after their appointment, is a new appointment with authority to report at the subsequent time designated, and this view of the question takes it out of the rule in Harris v. Mercur.

The appellant’s third proposition is “the court had no jurisdiction after the viewers had failed to report at the October Term, to extend the time for filing their report.” The authorities cited and our conclusions in regard to the second proposition necessarily overrules this.

The assignments of error are all overruled, and the decree confirming the report of the reviewers is affirmed, and the appeal is dismissed at the costs of appellants.