text:
    Louis Bergdoll Brewing Company, Appellant, v. Babe.

      Principal and agent — Sale of real estate — Power to receive purchase money — Corporation—Evidence.
    A corporation appointed a real estate agent as its agent to secure a purchaser for land, which the company owned in a city other than that in which it had its principal office. The person thus employed put up a “ For Sale ” sign with his name on it as agent, but this was not known to the corporation. A purchaser was procured by the agent, and •offered a certain sum for the property. The secretary of the corporation waited upon the purchaser and endeavored to secure a better offer. Not succeeding in this he said that the purchaser might further “arrange with” the agent, naming him, or “finish it out with” the agent. The corporation subsequently accepted the offer of the purchaser. The latter then employed the agent to raise money on a mortgage on other real estate owned by him, and such a mortgage was arranged with a trust company. The money was paid to the agent, who in his books credited it to the account of the purchaser, and made certain payments out of it at the request of the purchaser, and added certain amounts to it received from the purchaser; so that the amount of the loan which was the amount of the purchase money, was kept about the same. Delay occurred in delivering the deed, and in the meantime the agent died, and his estate was found insolvent. Held, that the agent had no authority to receive the money on behalf of the corporation, and ° that in placing the loan and receiving the proceeds thereof, he acted as the agent of the purchaser.
    Argued Nov. 21, 1906.
    Appeal, No. 172, Oct. T., 1906, by plaintiff, from judgment of G. P. Delaware Co., March T., 1905, No. 164, on verdict for defendant in case of The Louis Bergdoll Brewing Co. v. John Babe.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for land in the city of Chester. Before Johnson, P. J.

      May 13, 1907 :
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in not entering judgment upon the whole record in favor of plaintiff non obstante veredicto.

      W. B. Broomall, with him Robert A. Meier, for appellant.—
    An agent appointed by parol to sell land cannot receive the purchase money unless so authorized by his power: Dyer v. Duffy, 24 Lawyers’ Reports Annotated, 339 ; Peck v. Harriott, 6 S. & R. 146 ; Divinney v. Reynolds, 1 S. & R. 328; Campbell v. Foster Home Assn., 163 Pa. 609 ; Mynick v. Bickings, 30 Pa. Superior Ct. 401.

      O. B. 'Dickinson, with him A. B. Geary, for appellee.
    — In determining the liability of the principal to such third persons for the acts of the agent, the inquiry is not restricted to the actual authority of the agent, but extends to the question of apparent authority: Langenheim v. Anschutz-Bradberry Co., 2 Pa. Superior Ct. 285; Brewing Co. v. Schmidt, 24 Pa. Superior Ct. 396; Clark & Skyles on Agency, sec. 208, p. 496; Griggs v. Selden, 58 Vt. 561 (5 Atl. Repr. 504); Johnson v. Hurley, 115 Mo. 513 (22 S. W. Repr. 492).
    Facts from which inferences of agency may be drawn are for the jury: Lamb v. Irwin, 69 Pa. 436; Singer Mfg. Co. v. Christian, 211 Pa. 534; Nicholson v. Golden, 27 Mo. App. 132.
   Opinion by

Head, J.,

Inasmuch as the principal assignment of error questions the sufficiency of the evidence, as a whole, to support the verdict rendered, the disposition of the case requires us to go into a somewhat detailed review of the testimony and the facts established thereby.

Prior to the transaction in 1904 which gives rise to this litigation, the plaintiff, a corporation doing business in Philadelphia, was the undisputed owner of a certain property in the city of Chester. The premises being without a tenant for the ensuing year, the plaintiff, on February 16,1904, wrote to one Cochran, a real estate agent in Chester, inquiring as to the probability of securing a lessee and the amount of his commission for collecting rent. Cochran replied on the .eighteenth, giving the information desired, and on the nineteenth the company authorized him to rent the property for “ $150 per year or more.” On the twenty-ninth Cochran wrote he had a tenant who would lease if repairs were made and who would also entertain a proposition to buy at a reasonable price and asked instructions. On the same day the plaintiff replied, asking an estimate of the value of property to be submitted to the directors. On March 2, Cochran wrote that Babe, the defendant, would give “ one thousand dollars cash ” for the property; advised the acceptance of the offer and suggested that a representative of the company come down and look over the situation. The secretary of the company came to Chester and had an interview with Babe, the whole tenor and object of which were to induce the latter to raise his offer; but, his effort failing, he returned home after saying to Babe he could “ arrange with Mr. Cochran,” or “ that Cochran could finish it out.” This was the only direct communication, verbal or written, that the defendant claims to have had with any officer of the plaintiff company. After some further correspondence between Cochran and the plaintiff on the subject of price, the company finally determined to accept the offer of Babe and on April T the board of directors resolved “to accept the offer of I. E. Cochran, in behalf of John Babe, of one thousand dollars .... and that the officers of the company be and are hereby directed to make the necessary conveyance upon receipt of the purchase money.” On May 5, 1904, a more formal resolution was adopted by the board reciting the bargain and sale to Babe for $1,000, directing the president, by name, to execute a deed, the secretary to affix the corporate seal thereto, “ and upon receipt of said purchase money to deliver said deed to the purchaser.” Down to this time it seems to be agreed that the parties had entered into a good executory contract for the sale and purchase of the premises in dispute. The amount of the purchase money, viz.: $1,000, and the manner of payment, to-wit: cash, had been fixed in the offer and acceptance. There was no request for and no suggestion of payment in any other way made by either of the principals.

In aTetter dated April 20, 1904, the plaintiff notified Cochran of its acceptance of the defendant’s offer and on that day or the next, Cochran, on his own motion, asked for and obtained from the defendant a payment of $100, on account of the purchase money, and at the same time directed or permitted the defendant to take possession of the premises and begin some needed repairs. No notice of the payment of this money or of the change of possession was ever given to the plaintiff by Cochran, by the defendant or any other person, and we are unable to discover any evidence that the company ratified or assented to either of these assumptions of authority by Cochran. After his offer of $1,000 cash had been accepted the defendant undertook to obtain that sum by a loan to be secured by a mortgage on other real estate owned by him in Chester, and applied for such a loan and a policy of title insurance to the Delaware Trust Company. To this transaction the plaintiff was an entire stranger, having no connection whatever with it. The defendant selected Cochran as his agent or representative to conduct this negotiation for him. The necessary bond and mortgage were drawn up by Cochran, or in his office; they were there executed by Babe and then turned over to Cochran, and the trust company was authorized by Babe to make settlement with Cochran and pay to him the proceeds of the loan. Accordingly, on May 5,1904, the trust company gave its check to Cochran for $986.50, the proceeds of the loan after deducting its costs and commissions. This money was credited in the books of Cochran to Babe by the following entries in the cash book and “ scratcher,” viz.: in the former “ cash from trust company $986.50, John Babe, ’ — in the latter, “ John Babe, commission on loan, $5.00 ; writing mortgage, $5.00; title, etc., $13.00; endorsement on fire insurance policy, $ .50. Charge ledger account $23.50.” The ledger account of John Babe shows a credit to him of $1,000, “ mortgage loan from trust company,” with a charge against him of the items above mentioned and another to which we will refer later. As to this fund at least we think it undeniable, under the evidence, that Cochran received and held it solely as the representative of Babe, and could have been compelled at any time to return it, use or dispose of it as he, Babe, might direct. Thus it appears that after May 5, 1904, Cochran had in his ha^lds, after deducting charges, etc., $1,076.50 of the money of Babe. On June 21, at the instance of the latter, Cochran paid $100 cash to one Nodes, the son-in-law of Babe, charging it in the ledger account already referred to, thus reducing the fund to $976.50. Later, however, Cochran asked for and obtained from Babe the further sum of $30.00, thus again raising the fund in his hands to a little above the entire purchase money.

Meantime the consummation of the sale had been delayed by the examination of the title by the trust company and by its demand, finally acceded to by the plaintiff, that the authority to sell, conferred by the resolution of the board of directors already cited, should be supplemented by a like authority coming from the stockholders. Thus the delay seems to have been occasioned by those who were seeking to guard and secure the title the defendant was about to take. Early in November, 1904, at the annual meeting of the stockholders of the plaintiff company, the action of the board was formally ratified, thus leaving nothing further to be done by the parties but the delivery of the deed by the one, the payment of the purchase money by the other.

With matters in this condition, before either party had made any formal tender, and with the money of the defendant, as stated, in his hands, Cochran fell ill and died. We gather from the testimony that his estate is insolvent. Shortly after his death a representative of the defendant made a demand on the plaintiff for the deed. The company then, as at all times, declared its readiness to deliver the conveyance on receipt of the purchase money, but the defendant, taking the position that he had already paid to Cochran and thus paid the plaintiff, declined to pay more, and, holding his possession, this action of ejectment was begun.

During the trial the plaintiff tendered a fully executed deed, and expressed its willingness to accept a conditional verdict to be released on payment of the purchase money, and, at the conclusion of the testimony, prayed for binding instructions in its favor. The learned trial court refused its prayer and submitted the entire'question to the jury, permitting them to find, upon evidence tending to prove the facts already stated and one other to which we will advert, not only that an executory contract of sale had been entered into and that Cochran, to that extent, was acting for the plaintiff, butt also that he was fully authorized to receive the purchase money and put the defendant in lawful possession of the premises. To this conclusion we cannot give our assent.

We do not understand the able counsel for the appellee to contend that any such authority was ever actually conferred upon Cochran, either expressly or by implication. Such a contention would run counter to the entire current of the evidence, and would be untenable. But he does earnestly argue that the transfer of the .possession by Cochran and his receipt of the purchase money, in so far as he can be said to have received it, were acts within the apparent scope of the authority actually conferred, and, therefore, binding on the plaintiff. To sustain this position he relies first, on the fact that when the secretary of the plaintiff visited Chester to try to induce the defendant to raise his offer, he viewed the premises, and that there was, at that time, affixed to the building a “ For Sale ” board, of the kind ordinarily used by real estate agents, representing Cochran as “ agent ” for the property. Without stopping to discuss the significance of such a sign, even if observed by a secretary of a corporation, we think it sufficient to say there is no evidence whatever that he saw it, or that his attention was directed to it by anyone. Its mere location there could not fix the plaintiff with liability for a wholly unauthorized act by Cochran.

Stress is next laid on the remark, made by the same officer at the conclusion of his interview with Babe, that he might further “ arrange with Mr. Cochran,” or “ finish it out with Cochran.” Considering the scope and object of that interview — to say nothing of the authority of a secretary of a corporation in dealing with its real estate — we think it would be going beyond the limits of safety and reason to permit such a remark to be construed as even an apparent delegation to a mere agent, authorized to seek a purchaser, of all the right and power over real estate which are the badges of ownership. It is also true that Cochran demanded and received flOO on account of the purchase money, giving a receipt therefor which .he signed as “ agent ” for the plaintiff. Such a demand was a violation of the terms of the accepted offer, and ought to have invited some inquiry by the defendant. But Cochran’s act was but his own declaration of his agency to receive the purchase money, and, under all the authorities, would not bind tbe plaintiff unless ratified by- it or acquiesced in after knowledge. As to these essentials the evidence is silent. Finally, the allegation that Babe ever paid the remaining $900 of “ purchase money,” even to Cochran, has no foundation in the evidence. The money received by Cochran from the trust company was not paid to him as purchase money but as the proceeds of a loan, in a transaction in which he represented only the defendant. The money was credited to the latter in the books of his agent. Babe and Cochran both recognized the control of the former over that fund in the payment to Nodes that reduced it below the balance yet due on the purchase money.

If the defendant has lost his money by reason of the confidence he reposed in Cochran it is greatly to be regretted, but after a careful study of the evidence and this lengthy review of it we are unable to see in the record any sufficient reason wh}’- the legal title of the plaintiff should not have prevailed.

Judgment reversed, and it is now ordered that, within ten days from the filing of this order in the court below and notice thereof to counsel, the plaintiff file, in the office of the prothonotary of said court, for the use of the defendant, a good and sufficient deed for the premises in dispute, and that thereupon judgment be entered for tbe plaintiff, on its motion for judgment n. o. v., for the premises described in the writ with six cents damages and costs; conditioned, however, that if, within thirty days thereafter, tbe defendant pay to the plaintiff, or its counsel of record, the sum of $1,000, with interest thereon from the date of the verdict and costs of suit, the said judgment be released and final judgment be entered for the defendant. ' The costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Gosch v. Firemen’s Insurance Company, Appellant.

      Insurance — Fire insurance — Payment of premiums — Broker—Cancellation of policy.

    Where an ordinary insurance broker places insurance for his client, and the company insuring delivers the policy to the broker, and the broker delivers it to his client, who pays to him the premium, the payment to the broker is payment to the company; and the company, after the receipt of the premium, cannot cancel the policy merely by giving five days’ notice of its intention so to do. To avail itself of the right to cancel, reserved in the policy, it must not only give the required notice but must actually repay or tender payment of the unearned portion of the premium.
    Argued Oct. 10, 1906.
    Reargued Dec. 12, 1906.
    Appeal, No. 170, Oct. T., 1906, by defendant, from order of C. P. No. 4, Pbila. Co., March T., 1906, No. 2,706, on case stated in suit of Samuel M. Gosch and Emanuel M. Gosch, trading as Gosch Brothers & Company, v. Firemen’s Insurance Company of Newark.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability on a policy of fire insurance.
    The facts are stated in the opinion of the Superior Court.

      jError assigned was in entering judgment for plaintiffs on case stated.

      Frank B. Shattuck, for appellant.
    — The return of the premium was not a prerequisite of the cancellation of the policy : Schwarszchild & Sulzberger Co. v. Ins. Co., 124 Fed. Repr. 52; El Paso Reduction Co. v. Ins. Co., 121 Fed. Repr. 937.
    An actual return of the premium is not necessary when the premium was in fact never paid, though credit therefor may have been given: Bergson v. Builders’ Ins. Co., 38 Cal..541; Von Wein v. Scottish Union & Nat. Ins. Co., 52 N. Y. Sup. Ct. 490 ; Van Wert v. St. Paul Fire & Marine Ins. Co., 8 App. Div. 107 (40 N. Y. Sup. Ct. 463) ; Stone v. Franklin Fire Ins. Co., 105 N. Y. 543 (12 N. E. Repr. 45) ; Mutual Ins. Co. v. Bermond, 45 Ill. App. 22.

      Morris Wolf, with him Horace Stern, for appellees.
    — A fire insurance company under the conditions contained in the standard form of policy, which it has issued,, cannot cancel the same without payment or tender of the unearned portion of the premium in a case in which it has waived the previous surrender of the policy: Hartford Fire Ins. Co. v. McKenzie, 70 Ill. App. 615 ; Marshall v. Reading Fire Ins. Co., 78 Hun, 83 (29 N. Y. Supp. 334) ; Chrisman & Sawyer Banking Co. v. Hartford Fire Ins. Co., 75 Mo. App. 310; Hartford Fire Ins. Co. v. Cameron, 45 S. W. Repr. 158 ; Tisdell v. Ins. Co., 155 N. Y. 163 (49 N. E. Repr. 664) ; Stone v. Franklin Fire Ins. Co., 105 N. Y. 543 (12 N. E. Repr. 45) ; Philadelphia Linen Co. v. Manhattan Fire Ins. Co., 8 Pa. Dist. Rep. 261; First Nat. Fire Ins. Co. v. Isett, 11 W. N. C. 558 ; Baldwin v. Penna. Fire Ins. Co., 206 Pa. 248.
    May 13, 1907:
    When a fire insurance company delivers a policy to a broker to deliver to the insured, without demanding payment of the premium from the broker, and the broker delivers the policy to the insured, who thereupon pays the premium thereon to the broker, this constitutes a payment of the premium to the company : Arthurholt v. Ins. Co., 159 Pa. 1; Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149; Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545 ; Indiana Ins. Co. v. Hartwell, 123 Ind. 177 (24 N. E. Repr. 100) ; Gosch v. Ins. Co., 44 Ill. App. 263 ; Gaysville Mfg. Co. v. Phœnix Mut. Fire Ins. Co., 67 N. H. 457 (36 Atl. Repr. 36-7) ; American Fire Ins. Co. v. Brooks, 83 Md. 22 (34 Atl. Repr. 373) ; Landes v. Safety Mut. Fire Ins. Co., 190 Pa. 536 ; Frost v. North British, etc., Ins. Co., 77 Vt. 407 (60 Atl. Repr. 803).
   Opinion by

Head, J.,

From the case stated, which was agreed on by the parties and filed in the court below, the following material facts appear. On or about May 24, 1905, the defendant company executed and delivered to the plaintiffs its policy of insurance whereby it agreed to indemnify them from loss or damage by fire to the property therein described for the term of one year, viz.: from May 22,1905, to May 22, 1906. The plaintiffs had made application for this insurance through one Darrah, an ordinary insurance broker doing business in the city of Philadelphia, and to him the defendant gave its executed policy to be by him delivered to the plaintiffs. The policy was duly delivered and the plaintiffs, at the time of delivery, paid to Darrah the full amount of the premium due and called for in the policy; the latter, however, never paid over this premium or any part of it to the companjr or any of its authorized agents, and later left the jurisdiction. The policy was of the usual form commonly known as a “standard policy” and contained the following provision on the subject of cancellation: viz.: “ This policy shall be cancelled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice, it shall retain only the pro rata premium.”

On July 26,1905, the company, through its authorized agents in Philadelphia, sent to the plaintiffs a formal five days’ notice of its intention to cancel their policy. After the expiration of the five days the company demanded from the plaintiffs the surrender of the policy, but at the same time refused to repay any part of the premium alleging, as a reason for such refusal, that it had not received the premium or any part of it from Darrah, whereupon the plaintiffs refused to surrender the policy.

The parties continued to occupy this attitude towards each other until, in November, 1905, a fire occurred resulting in damage to the property covered by the policy, and it is agreed that, if tlm policy was then in force, the extent of the company’s liability thereunder is 1558.04.

The plaintiffs brought this action to recover that amount, contending that the notice of cancellation was ineffective to extinguish the contract of insurance because the company had failed, before the date fixed in the notice, to repay or tender payment of the unearned premium. The company denied any liability on the ground (a) that, under no construction of the policy provision, wherein its right to cancel at its option was reserved, could such payment or tender be deemed to be a part of the act of cancellation when, in fact, the premium had not been received by it; and on the broader ground (b) that the right to cancel was wholly independent of the obligation to repay the unearned premium, which obligation came into existence only after the act of cancellation liad been completed and, even then, was conditional on the surrender of the policy by the insured. The learned court below rejected both grounds of defense and entered judgment for the plaintiffs, whereupon this appeal was taken.

Was the payment of the premium by plaintiffs, at the time of the delivery of their polic3r, to the broker who delivered it, a payment, in the .eyes of the law, to the company? It is agreed that the broker was the medium selected by the company for the delivery of its policy to the insured. It could have selected any other method of delivery, but chose that one. The purpose of the delivery was to put the policy into force thereby. The act of delivery was apparent^ the last prerequisite necessa^r to convert the paper policy into a living contract of indemnity. The very terms of the agreement contemplated a cash payment of the premium and the possession of the policy would be prima facie evidence of its payment. Without the payment of the premium the agreement would be nudum pactum and the policy in the hands of the plaintiffs a useless paper instead of a substantial protection against loss by fire; in other words, the act of delivery would be incomplete and ineffective. It is difficult to understand, therefore, why the authority to deliver the policy did not carry with it the authority to receive the premium. But surely the receipt of the premium by the broker, if not thus in fact authorized, was within the apparent scope of his authority. The possession by him of the executed policy with authority to deliver would naturally invite a payment of the premium to him, and the company must be held to have contemplated this probable result when it turned its policy over to him. In Lebanon Mutual Ins. Co. v. Erb, 112 Pa. 149, a ease in which the facts were more favorable to the contention of the defendant than in the one before us, because the policy contained an express provision that it should be null and void “if the assured shall have neglected to pay the premium,” Mr. Justice Ciakk thus states the law: “ On the 5 June, 1882, the policy in suit, containing an acknowledgment of the receipt of $30-00, the cash premium, was by the company executed and forwarded to Clifford B. Pease, the Boston broker, who was thus intrusted with the delivery. Although not the agent of the company, in any general sense, he thereby became the agent for this particular purpose upon payment of the premium. The agency is necessarily implied from the nature of the transaction itself; the policy was placed in his hands for the very purpose of delivery, and the delivery, by its express terms, was conditioned upon payment of the premium; it is clear, therefore, that the authority of Pease was limited accordingly. . . . The company might have retained the policy until the. premium was paid, or they might have sent it directly to the insured, with instructions to remit the amount; in either case, the contract would have been ineffective until the condition of the policy had been complied with. But they chose to send it to Pease, with an acknowledgment of payment, for delivery to the insured, and this act of the company must be taken as an authorization of Pease to receive the money.”

In the later case of Arthurholt v. Fire Ins. Co., 159 Pa. 1, which differs from this only in the fact that there the broker had acted in the same capacity several times, the opinion of the court and the vigorous language used by the late Mr. Justice Dean in expressing it indicate no disposition on the part of the court to take any backward step on this subject. The conclusion thus reached seems to be in harmony'with the decisions of the courts of many states : Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545 ; Indiana Ins. Co. v. Hartwell, 123 Ind. 177; Allen v. German Am. Ins. Co., 123 N. Y. 6; Gosch v. State Mut. Fire Ins. Co,, 44 Ill. App. 263; Gaysville Mfg. Co. v. Phœnix Mut. Fire Ins. Co., 67 N. H. 457.

The learned counsel for appellant frankly concedes that the delivery of the policy by the broker and his receipt of the premium put the policy into full force; so that if a fire had occurred, before the alleged cancellation the company could not have successfully denied its liability. But, he argues, the law is so, not because it regards payment to the broker as payment to the company, but because the latter is estopped from asserting or is held to have waived its right to assert that the premium has not in fact been paid to it.

Whilst we do not understand the weight of the cases cited to rest alone on the doctrine of estoppel or waiver, yet even if we so concede, the situation of the appellant would not be helped; for if, under the conditions now before us, the law declares that the company may not be heard to allege nonpay-, ment of the premium to escape the greater obligation of indemnity, for the same reason must it turn a deaf ear to the same allegation, when advanced to escape the lesser obligation to return the unearned premium in case of cancellation. We are impelled, therefore, alike by reason and authority, to hold that for all the purposes of this case, the premium on the policy of the plaintiffs was paid, and the rights and obligations of the company, under the cancellation clause quoted, must be determined just as if the money of the plaintiffs had been paid directly into the home office.

The plaintiffs, then, having paid the premium for the entire term, could the defendant, at its own pleasure, effect a complete extinguishment of the insurance contract, merely by giving notice of its determination to cancel, without, at the same time returning or tendering the unearned portion of that premium? Where a contract with mutual undertakings has been entered into by two parties and fully performed by one of them, we may certainly say, speaking generally, that the other party could not successfully invoke the aid of any court in an effort to rescind, until he had returned or tendered the return of any valuable thing he had received by reason of the contract. To permit him to retain the benefits and at the same time repudiate the burdens of his own agreement would be highly unconscionable aird shocking to our sense of natural justice. It would be out. of harmony with some of the fundamental principles on which our entire system of jurisprudence is built. Of course where the right to cancel has been expressly reserved in the contract itself, then the extent of the right and the conditions upon which it may be exercised must be determined by a reference to the contract rather than to principles of general law. Turning, then, to the language of the agreement in which the parties have undertaken to state their respective rights and duties, if we find it susceptible of two constructions, one in harmony with, the other in opposition to, those general principles already referred to, a sound discretion would seem to invite us to accept the former and reject the latter; just as in ascertaining the true meaning of a doubtful clause in a will, the courts incline to that construction which would vest the -estate rather than leave it contingent, which would give the inheritance to the heir rather than to a stranger. Taking up, then, the provision of the policy on this subject and looking at it as a whole, we may confidently say that it contemplates a complete and effective destruction of the contractual relation at the instance of either party; and that to accomplish this end the party moving must do two distinct and separate things, the object in view undeniably being that, when the cancellation shall have been completed, both parties will have been restored, as far as possible, to the conditions existing before the contractual relation began. If the destruction of this relation be begun by the assured, he must give notice to the other party and surrender his policy, which proclaims the existence of the relation he would now destroy; if begun by the company it must also give notice and repay or tender payment of the unearned premium in its hands. The right reserved to each party is but a single one, viz.: the right to cancel; and the cancellation contemplated is not a partial but a complete one. The obligation imposed on the party moving to cancel is, looking broadly at the entire contract provision, also single, viz.: the restoration of the other party, as far as may be, to the situation occupied before the contractual relation began. True, this involves the performance or tender of performance of another act besides the giving of notice; but it does not necessarily follow that such performance or tender maybe totally dissevered in time from, and thus rendered wholly independent of, the giving of the notice. Such a construction of the policy provision, although strongly urged on us by the learned counsel for appellant, is, at best, a doubtful one. More than this he can hardly claim for it in light of the fact that it has been deliberately rejected by the courts of lastresortof most of our sister states. The argument supporting it, as he agrees, has been stated, as forcibly as it can be, in the dissenting opinion of Chief Justice Parker in Tisdell v. New Hampshire Fire Ins. Co., 155 N. Y. 163. An examination of this opinion seems to show that its conclusions are reached rather from a critical analysis of some of the language of the policy provision and the order.in which its sentences are collated, than from a broad view of the entire provision and a consideration of the nature of the object to be accomplished thereby. The following language from the majority opinion clearly indicates that the question must now be considered as settled in that jurisdiction. “ The question presented on this appeal is no longer an open one in this court. It was decided in Nitsch v. American Central Ins. Co., 152 N. Y. 635, affirmed in this court, without an opinion. In that case, as in this one, the question presented was, whether the provision of the New York standard policy of fire insurance relating to the cancellation of a policy at the instance of the company, requires, that in addition to giving the five days’, notice, the company must return or tender the unearned premium, in order to effect a cancellation? The answer was in the affirmative.” In an elaborate discussion of the whole subject to be found in Cooley’s Briefs of Insurance, wherein all of the cases from the various jurisdictions are cited and considered, the general rule to be drawn from them is thus stated on page 2801: “ The general rule is that under such a provision, unless waived, the repayment of such proportion of the premium is essential to a valid cancellation, and notice without such repayment or a tender of the amount is ineffectual. . . .' There must be an actual repayment or tender; a mere promise to pay, or request to call for the amount due, or notice that the money is subject to insured’s order, being insufficient.’ ’ The line of reasoning adopted by the many courts from whose decisions the above rule has been drawn, is well exemplified in the opinion in the case of Chrisman & Sawyer Banking Co. v. Hartford Fire Ins. Co., 75 Mo. App. 810, thus: “ In the recission of a contract by one party, it is a necessary condition precedent to such recission to place the other party in statu quo; to restore to him whatever may belong to him by reason of bringing the contract to an end. Within this rule it has been repeatedly held that before an insurance company can make an effective cancellation, it must return or tender the unearned premium. . . . But it is said that the particular policy provided that the unearned premium was to be returned ‘ on surrender of the policy,’ and as the policy was not surrendered it was not necessary to return the premium. We think the return of the premium and surrender of the policy, under the terms of the contract, were concurrent acts ; that neither could be demanded without the other. But as the defendant was the party seeking the cancellation it was its first duty to have tendered the unearned premium on a surrender of the policy. It would then have done all that the contract required it to do, in order to place the assured in statu quo.”

Even if, then, the question could be regarded as an open one with us we have endeavored to show — at the risk of unduly lengthening this discussion — that in affirming the judgment, entered by the learned trial court, we but follow a line of reasoning the soundness of which has been attested by the decisions of many tribunals of highest authority. But we cannot regard the question as an open one because we believe it to have been ruled in the case of Baldwin v. Penna. Fire Ins. Co., 206 Pa. 248. In that case, the suit being on a policy similar to the .one now under consideration, the company in its affidavit of defense set up “ that the policy in suit had been surrendered and returned for cancellation and actually had been canceled on December 8, 1897.” We have not the record actually before us, but take this statement from the paper-book of the appellant which we have carefully examined. The trial court held that the contract of insurance had never been completed, and the policy had never gone into force and on this ground nonsuited the plaintiff. This court affirmed the judgment for the same reason. But the Supreme Court held that the contract had been fully completed and, therefore, the policy was in force at the time of the fire unless it had been canceled meantime as the company had alleged. As the case was sent back to be retried the court could not well avoid disposing of this important defense set up by the averment of the affidavit quoted, and we think they did it in no uncertain manner. Speaking for the court, Mr. Justice Dean, after pointing out the character of evidence necessary to show a cancellation at the instance of the insured, turns to the question now before us and says : “ The company gave no notice of its intention to cancel as required by the contract nor did it return nor offer to return five-sixths of the premium, a preliminary to cancellation as the contract required. We can take no other view of the evidence, than that the contract of indemnity was complete when Hatfield and the agent both agreed to it and the agent, by consent of Hatfield, retained for the company the unearned premium. Was the contract afterwards rescinded or canceled by the company or by consent of Foster, the attorney (for the insured) ? The company could cancel it just one way at any time, that was, by five days’ notice to the representative of the estate of its intention to do so and return of five-sixths of the premium; it gave no notice and offered to return no premium.”

We are earnestly urged by the learned counsel for the appellant to regard this clear and emphatic statement of the law, upon the very point now under consideration, as merely dictum, but we are wholly unable to do so in the light of the fact that the cancellation of the policy was a defense distinctly raised by the pleadings, and the further fact that in the judgment entered, in which the entire court concurred, we find the following : “ On a retrial it is directed that the law be announced as we have indicated,” etc.

Looking at the question from every point of view we can reach no other conclusion than that the payment or tender of the unearned premium was an essential part of the act of cancellation, and that without it the mere notice by the company of its intention to cancel was ineffective to destroy the policy obligation. The assignments of error must, therefore, be overruled.

Judgment affirmed.


author: Rice, P. J.,

text:
    Diamond Glass Company, Appellant, v. Ladwig.

      Contract — Manufactured article — Future delivery — Passing of title.

    The general rule is that a chattel ordered to be manufactured and to be delivered in the future continues the property of the manufacturer until completed and delivered or tendered. This general rule gives way where the intention of the parties is that the title shall pass upon completion of the article and notice thereof to the vendee, or at an earlier period. But the cases in which it has been held that the title passed during the progress of manufacture are recognized as exceptional, and such conclusion is sustainable only where it is in accordance with the actual intention of the parties.
    It is a question of intent, arising on the interpretation of the entire contract in each case. If taking all the stipulations together, it is clear that the parties intended that the property should vest in the purchaser during the progress of the work and before its completion, effect will be given to such intention and the property will be held to pass accordingly; but, on the other hand, it will not be deemed to have passed out of the builder unless such intent is clearly manifested, but the general rule of law will prevail.
    In an action for goods sold and delivered it appeared that the defendant gave an order to plaintiff by which the latter was to construct, deliver and “set up” show cases of a particular design, material and dimensions, and that the defendant was to pay for them a stipulated price when “set up.” The plaintiff did not deliver to the defendant the show cases, but did ship by rail to the defendant several crates of parts which when “ set up ” would be show cases. A drayman without special order from the defendant, but with whom the defendant had a general contract to bring to his store any goods that he might find at the railroad station consigned to the defendant, ordered one of his drivers to haul these crates to the defendant's store, and when they arrived there, the defendant ordered them to be taken to the third story where unopened packages were kept. Within twenty-four hours a fire occurred which destroyed the crates as well as the store. Held, that the title to the show cases had not passed to the defendant at the time of the fire, and that the court committed no error in nonsuiting the plaintiff.
    Argued Feb. 28, 1907.
    Appeal, No. 22, Jan. T., 1907, by plaintiff, from order of G. P. Lackawanna Co., May T., 1905, No. 333, refusing to take off nonsuit in case of Diamond Glass Co. v. John H. Ladwig.
    Before Rice, P. J., Porter, Henderson, Oready, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before New-comb, J.
    The facts are stated in the opinion of the Superior Court.
    The following amendment was refused:
    That by mistake and inadvertence the following was omitted from the plaintiff’s statement, to wit: “ It was expressly agreed by and between the plaintiff and defendant at the time when the orders were signed by Ladwig, that the plaintiff was to take the goods from the freight station and put them in place, and that the defendant was not to take the same from said station or meddle with them in any way; but that in violation of said agreement, the said John H. Ladwig did on November 3,1903, cause and allow the said goods ordered by him from the plaintiff to be removed from the freight station in the city of Scranton and placed in his store in violation of his contract with the plaintiff, and as a result of said breach of contract and of duty on his part, the goods were destroyed on said November 3, 1903, shortly after they had been placed in his said store. Plaintiff avers by reason of said breach of contract the defendant waived and prevented the plaintiff from taking said show cases from the station and setting them up, and that the said goods were worth $875, and that by reason of the acts of the defendant, it has lost the same. Plaintiff avers that by reason of the premises it is entitled to recover the sum of $375 with interest thereon.”

      Error assigned was in refusing to take off nonsuit.

      A. A. Vosburg, with him Charles W. Dawson, for appellant.
    —The stipulation in the order that the show cases should be set up, was not a condition precedent to the vesting of the title to the goods : Emery v. Scarlett, 8 Pa. C. C. Rep. 123; Andrews v. Weaver, 4 Montg. 110 ; Hinde v. Whitehouse, 7 East, 558; Lingham v. Eggleston, 27 Mich. 324; Whitecomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520; Elgee Cotton Cases, 89 U. S. 180; Dennis v. Alexander, 3 Pa. 50; Scott v. Wells, 6 W. & S. 357; Pepper v. Phila., 114 Pa. 96.
    Even if the setting up of the show cases was a condition precedent, Ladwigbyhis acts waived compliance with this condition : James v. Burchell, 82 N. Y. 108; Smith v. Snyder, 168 Pa. 541; Jones v. Sowers, 204 Pa. 329; Newcomb v. Brackett, 16 Mass. 161; Crabtree v. Messersmith, 19 Iowa, 179; Grove v. Donaldson, 15 Pa. 128.
    If a purchaser receives delivery before it is convenient for the seller to do what is necessary to complete the contract of sale, understanding that it is to be done afterward, the property vests in the buyer: Wilkinson v. Holiday, 33 Mich. 386 ; Pacific Iron Works v. R. R. Co., 62 N. Y. 272 ; Morse v. Sherman, 106 Mass. 430 ; Fuller v. Bean, 34 N. H. 290 ; Terry v. Wheeler, 25 N. Y. 520 ; Whelan v. Clock Co., 97 N. Y. 293 ; Butterfield v. Byron, 153 Mass. 517 (27 N. E. Repr. 667).

      W. S. Diehl, of Watson, Diehl Kemmerer, for appellee.—
    A contract to sell and deliver goods ata certain place gives no cause of action unless there be a delivery at the place agreed on: Millard v. Morse, 32 Pa. 506; Miller v. Seaman, 176 Pa. 291.
    The rule is that the party in whom the title to property is vested must bear the loss in case of destruction by accident: Pittsburg Glass Co. v. Doubleday, 2 Pa. Superior Ct. 170; McConihe v. New York, etc., R. R. Co., 20 N. Y. 495.
    May 13, 1907 :
   Opinion by

Rice, P. J.,

The plaintiff declared in assumpsit that on September 17, 1903, the defendant gave the plaintiff two written orders for show cases; that the plaintiff accepted the orders; that the show cases were delivered to and’ received by the defendant, and that he refused to pay the price agreed upon. Upon the second trial of the case, and after the motion for compulsory nonsuit had been made, the plaintiff presented the petition for amendment of its statement of claim which is set forth in the first assignment of error. The petition does not show how the “ mistake or inadvertence ” occurred which resulted in the omission of the averment proposed to be inserted in the statement. But further, the proposed amendment is not in matter of form but in a matter of substance. It would not be difficult to show that it averred a substantially different cause of action from that set up in the original statement of claim. The amendment was not such as the plaintiff was entitled to under the statute as matter of right, and, under the circumstances, we are not prepared to hold that there was an abuse of discretion in not permitting it.

The facts are that the plaintiff did not deliver to the defendant four show cases, but did ship by rail consigned to the defendant several crates of parts, which when “ set up ” would be show cases, and that within twenty-four hours after these crates of parts were placed in defendant’s store, they were consumed by a fire which destroyed the store as well. The plaintiff’s shipping derk testified upon the subject of shipment as follows: “ On October 22, we shipped one crate of frames, roofs and bases, two crates of bases and one box of hardware, and on October 23rd four cases of plate glass, two boxes of glass, one crate of marble ; the two shipments being all of the goods which are necessary for two outside cases and two special cases, and comprise the order given by John H. Ladwig of Scranton, Pennsylvania, to the Diamond Glass Company on the 17th day of September, 1903.” Manifestly, the delivery of these parts out of which the show cases could be constructed was neither complete nor substantial performance of the written contract, by the terms of which the plaintiff was to construct, deliver and “ set up ” show cases of the design, material and dimensions described in the orders, and the defendant was to pay for them the stipulated price when “set up.” The contract formed by each order and acceptance was entire and ex-ecutory, and the general rule is that a chattel ordered to be manufactured and to be delivered in the future continues the property of the manufacturer until completed and delivered or tendered. This general rule gives way where the intention of the parties is that the title shall pass upon completion of the article and notice thereof to the vendee, as in Ballentine v. Robinson, 46 Pa. 177, or at an earlier period. But the cases in which it has been held that the title passed during the progress of manufacture are recognized as exceptional, and such conclusion is sustainable only where it is in accordance with the actual intention of the parties. “ It is a question of intent, arising on the interpretation of the entire contract in each case. If, taking all the stipulations together, it is clear that the parties intended that the property should vest in the purchaser during the progress of the work and before its completion, effect will be given to such intention and the property will be held to pass accordingly; but on the other hand, it will not be deemed to have passed out of the builder unless such intent is clearly manifested, but the general rule of law will prevail: ” Per Bigelow, C. J., in Briggs v. A Light Boat, 89 Mass. 287. No such intent is manifested in the stipulations and terms of the contract under consideration. It cannot be argued with any show of reason that the property became vested in the defendant, and a right of action for the stipulated price accrued to the plaintiff, upon completion of the parts out of which the show cases were to be constructed, or upon delivery thereof to the common carrier consigned to the defendant, or upon their arrival at the railroad station to which they were shipped.

But, it is contended, notwithstanding the express stipulation of the written order that “ there is no condition or understanding relative to the above order that is not specified therein,” that the court erred in rejecting the defendant’s offers to show, first, that the trade meaning of the words “ to set up,” when used in such a transaction, includes taking of the parts from the railroad station and setting them up in the place of business for which they are intended; second, that the understanding of the parties as to the meaning of the stipulation, as orally expressed at the time the orders were given, was in accordance with the trade meaning of the words. It is not perceived that proof of these facts would have strengthened the plaintiff’s claim to recover the stipulated price for the show cases upon its mere delivery of the parts and materials out of which they were to be constructed upon the defendant’s premises. But it is ingeniously argued that, even if the “ setting up ” of these materials and parts was a condition precedent, the defendant by his acts waived performance. The facts from which it is claimed waiver is to be implied are, that a drayman, without special order from the defendant, but with whom the defendant had a general contract to bring to his store any goods that he might find .at the railroad stations consigned to the defendant, ordered one of his drivers to haul these crates to the defendant’s store, and that when they arrived there the defendant ordered them to be taken to the third story where unopened packages were kept. The question of waiver is largely one of intention, each case depending upon its own special facts. If in this case the plaintiff had tendered these crates of materials and parts in full performance of its contract and the defendant had unqualifiedly accepted them with knowledge of the scope of the tender, it might well he argued that the property vested and thereafter they were held at the defendant’s risk. But it is not contended that they were consigned to the defendant for any other purpose than that they should be placed in the defendant’s premises, where the performance contemplated by the contract was to be completed. The plaintiff’s consignment of the packages in the name of the defendant instead of its own name is rather to be interpreted as an invitation to the defendant to remove them to his premises for that purpose, than as a tender of full performance; and the acceptance of delivery of the packages, under the circumstances stated, is rather to be interpreted as a compliance with this implied request of the plaintiff, than as “ a voluntary and intentional relinquishment of a known right,” which is of the essence of waiver. To say that the defendant waived or interfered with performance of the condition precedent would be unwarranted ; it is more appropriate to say that his acts were in aid of such performance; hence, they do not preclude him from refusing payment because the condition precedent to the vesting of the property in him, and the accruing of a right of action for the price to the plaintiff, had not been performed. It should be noted, perhaps, that the destruction of these crates of parts is not claimed to have been in consequence of any negligent act of the defendant. The fire which destroyed his store was the proximate cause of their destruction, not the act of the defendant in accepting possession of them under the circumstances stated. The court was clearly right in sustaining defendant’s motion for a compulsory nonsuit, and the result would not have been different if the offers of evidence we have been discussing had been received.

The judgment is affirmed.


author: Pee Curiam,

text:
    Deering Harvester Company, Appellant, v. Zink.

      Appeals — Justice of the peace — Finality of judgment — Quashing appeal.

    A judgment of the common pleas reversing a judgment of a justice of the peace on certiorari, and entering judgment for defendant for costs, is final, and, under the Act of March 20, 1810, 5 Sm. L. 161, no appeal lies from it.
    Argued March 5, 1907.
    Appeal, No. 10, March T., 1907, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1906, No. 90, reversing judgment of a justice of the peace in case of Deering Harvester Co. v. Valentine Zink.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Appeal quashed.
    Certiorari to justice of the peace.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the court.

      May 13, 1907 :

      O. S. McOormiek, for appellant.

      W. 0. Kress, with him 0. Cr. S. F. Furst, for appellee.
   Pee Curiam,

The plaintiff brought an action against the defendant before a justice of the peace upon a promissory note and obtained judgment. The defendant removed the proceedings to the common pleas by certiorari, and that court upon consideration of the exceptions made this order: “ The judgment of the justice reversed and judgment entered in favor of defendant for costs.” The Act of May 11, 1901, P. L. 164, provides, that where proceedings shall be removed by certiorari from ■before a justice of the peace by the defendant, in case “ said proceedings are reversed and judgment given by the court for the defendant, said judgment shall be entered of record in the prothonotary’s office, and shall carry with it all costs incurred in the case.”' It is argued that this implies that the court not only may reverse without entering judgment for the defendant, but in a proper case may reverse and enter judgment for the defendant, and that only in the latter case is there to be a judgment of the common pleas for costs. It is contended further that the judgment in question is to be interpreted, not as a judgment for the defendant within the meaning of the act of 1901, but only, as an award of costs upon reversal of the proceedings; that the award of costs was erroneous, and that in that particular the action of the court is reversible upon appeal, notwithstanding the provisions of the twenty-second section of the act of March 20, 1810, 5 Sm. L. 161, that “ the judgment of the common pleas shall be final in all proceedings removed as aforesaid by the said court, and no writ of error shall issue thereon.” The question of the finality of' the judgment of the common pleas upon the question of costs is not a new one, and it has been authoritatively determined against the appellant’s contention in Silvergood v. Storrick, 1 Watts, 532, and Palmer v. Lacock, 107 Pa. 346. In the first case the court declared that the twenty-second section of the act of 1810 “ is applicable to every judgment or proceeding of that court on writs of certiorari in the cases intended, whether as regards reversal, costs, execution or any other matter.” This decision was followed in the second case, where Justice Green said: “ As the language of the act extends to the judgment of the common pleas on all proceedings removed by the writ of certiorari, it necessarily embraces a judgment or determination of the court on a question of costs and of execution therefor in the case removed. Such judgment is a part of such proceedings, and therefore comes within the final and exclusive jurisdiction of the common pleas. It is unnecessary to consider the question whether the defendant was entitled to his costs on the certiorari, as it is not within ou-r province.” These rulings are conclusive of the question before us.

The appeal is quashed.


text:
    Commonwealth, v. Slagel, Appellant.

      Nuisance — Highway—Road established hy prescription.

    An indictment for nuisance may be maintained against a person who maintains a nuisance upon a public highway established by prescription; but where a part of such prescriptive highway has been abandoned, arid a new way has been constructed by citizens and supervisors without any statutory proceedings, and without having obtained the consent of all the owners of the land over which the new road is laid out, an indictment cannot be maintained for acts on the new road which if committed on a legal highway would have been a public nuisance.
    It is impossible upon an indictment charging a public nuisance in obstructing and injuring a public highway to convict upon evidence which shows that it is not a public highway.
    Argued March 11, 1907.
    Appeal, No. 90, April T., 1907, by defendant, from judgment of Q. S. Fayette Co., Sept. T., 1905, No. 90, on verdict of guilty in case of Com. v. B. R. Slagel.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lady and Head, JJ.
    Reversed.
    Indictment for nuisance. Before Taylor, J., specially presiding.
    The facts are stated in the opinion of the Superior Court.

      Defendant presented, inter alia, these points:
    1. It not appearing from the evidence that the road alleged to have been obstructed, and along or on which the alleged nuisance was committed, was laid out, opened and established, under legal proceedings, no conviction of the defendants can be had. Answer: Refused. A way common and for public use may be acquired by prescription, grant or condemnation proceedings, and there being some evidence in this case of a right of way acquired by prescription and consent of the landowner to 'a change from that place, we could not affirm that point. [1]
    2. It appearing from the evidence that a portion of the said road has been in use for only about two years, and was not laid out and opened in pursuance or by virtue of legal proceedings in the court of quarter sessions for that purpose, the defendants cannot.be convicted of any offense laid in the indictment, by reason of any act or acts committed or omitted on or along such portion of said road. Answer: Refused. ‘ If the jury find the old road was a public way by prescription or any other way, and they surrendered their right to a portion of it designated as the new portion, and the public used it in lieu of the old, and the owners of the land, or that the public accepted that — made that change — then it would be a substitution of the new portion of the road for the old. [2]
    3. The public can acquire a right to a way or road in one of three manners, to wit: condemnation; grant and prescription; in this case the portion of the road designated as new road is admittedly not acquired by condemnation, the / evidence is insufficient to establish a grant, and the time during which it has been opened and used by the public is too short for the public to acquire a prescriptive right thereto, and the defendants are not guilty of the offense of common nuisance by reason of any acts committed or omitted thereon, as charged in the indictment. Answer: The answer to this point is controlled by our remarks in refusing points numbers,one and two, which we have already given you. [3]
    The court charged in part as 'follows :
    [Now that raises a legal question here which you have heard the defendants raise, which we have disposed of in this way: we are bolding that the evidence in the case shows that the road was abandoned. Then, that went back to the original landowner, that part of the road. But the evidence in the case shows that before it was abandoned, or about the time it was in contemplation of the public to get rid of that hill, the landowner was interviewed, or at least went there, and the evidence was that the Stewart heirs gave their consent to the change which the supervisors desired to make in this road, by-making it down in that portion known as the new road, which consisted of 149 perches between the points of intersection, as shown by exhibit No. 1, and that that old road was abandoned about two or three years ago, and this new portion substituted or taken in lieu of that road. So if the old road was acquired by prescription — by a user of it for twenty-one years, it would not defeat the new part as being a public road because it was substituted for the part abandoned, and with the consent, as the testimony is, of the landowner, because one of the supervisors testified expressly that he interviewed one of the Stewart heirs and they consented — the one there on the ground consented to the change of location from the old to the new. That would make that as much a public road, if the old road was a public road, as if it had been used — that portion of it called the new — for the same period of time required to acquire by right of prescription.] [5]
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1 — 3, 5) above instructions, quoting them.

      H. 8. Eumbauld, of Sterling, Higbee, Bumbauld Brown, for appellants. —
    .When a road has once been opened by the supervisors its location cannot afterwards be altered by another supervisor for the purpose of placing it on what he may suppose to be its proper site : Furniss v. Furniss, 29 Pa. 15; Holden v. Cole, 1 Pa. 803; Penna. Canal Co. v. Shirley Twp., 18 W. N. C. 397 ; Cook v. Deerfield Township, 64 Pa. 445 ; Morrow v. Com., 48 Pa. 305 ; Hancock v. Wyoming Boro., 148 Pa. 625; Gray v. North Versailles Township, 208 Pa. 77.

      Alfred E. Jones, with him Thomas H. Hudson, district attoruey, and Davis W. Henderson, assistant district attorney, for appellee, cited:
    May 13, 1907:
    McMurtrie v. Stewart, 21 Pa. 322; Com. v. Barker, 140 Pa. 189.
   Opinion by

Rice, P. J.,

The defendant was convicted under the second count of the indictment, which charged the commission of a public nuisance on the public road from Ohiopyle to Confluence, “ by dragging heavy logs and other material over said road, whereby the said road was torn up, destroyed and greatly damaged and rendered dangerous to travelers over said road, to the common nuisance,” etc. The first step necessary to the commonwealth’s case, therefore, was proof that the place where the injurious acts were committed, -was a public highway: Commonwealth v. P. & R. R. R. Co., 135 Pa. 256.

There was ample evidence to show the existence of a highway by prescription between the points named, and the commission of acts thereupon which constituted a public nuisance. The unlawful obstruction of a public highway was an indictable nuisance at common law : Kelly v. Com., 11 S. & R. 345; Com. v. McNaugher, 131 Pa. 55; and our statute, which makes it a misdemeanor to erect, set up, establish, maintain and keep up or continue, or cause to be erected, set up, established, maintained, kept up or continued, any public or common nuisance, recognizes no distinction between a public or common nuisance committed in a highway laid out by proceedings in the quarter sessions, and one committed in a highway, the establishment of which rests upon proof of defined, uniform, adverse and uninterrupted user by the public, under a claim of right, for twenty-one years, or upon proof of dedication followed by proper acceptance. We need not take up further time in discussing the appellant’s first proposition, that a defendant indicted for nuisance by injury to a public road cannot be . convicted without proof that it was laid out, opened and established under legal proceedings. The request for such instructions was properly refused.'

But it is claimed by the commonwealth that in 1903, after this road had become a public highway by adverse user by the public for twenty-one years, a change was made, whereby a new road around the hill was substituted for part of the road which went over the hill. The second question presented by the appellant is, whether he could be convicted for acts done upon the new road ? The evidence relating to this change is to the effect, that the land upon which the new road is laid out belonged to the Stewart heirs, many in number; that citizens of the township applied to Andrew Stewart, the only one of the heirs who lived in that locality, for permission to lay out the road over their land, and that he said in substance — quoting the testimony of the witness — “So far as he was concerned, or the rest of the heirs, it would be all right if they didn’t destroy any timber; ” that without consulting the other heirs the citizens then built the road, and in 1905 the supervisors worked upon it; and that during the short period that elapsed after it was constructed, the public used it instead of the part of the old road it was intended to supply. This prosecution was begun in July, 1905. Such evidence is insufficient to show a legal vacation and relaying of a highway, or any part of it, that has been established by adverse user by the public for twenty-cine years. There is a class of cases which hold that the road as opened by the supervisors under an opening order constitutes the public road, even though it be not on the exact route selected by the viewers: Morrow v. Commonwealth, 48 Pa. 305 ; Commonwealth v. Jackson, 10 Pa. Superior Ct. 524; Commonwealth v. Plymouth Twp., 19 Pa. Superior Ct. 408. But neither the supervisors, nor they acting in conjunction with citizens of the township, have authority to change the route of a highway after it has been laid out and opened under an opening order, and this is equally true of a prescriptive highway. The statute prescribes the method whereby this may be accomplished, and precludes the changing or vacation of highways in the summary method resorted to here: Holden v. Cole, 1 Pa. 303; McMurtrie v. Stewart, 21 Pa. 322: Furniss v. Furniss, 29 Pa. 15; Clark v. Commonwealth, 33 Pa. 112; Brewer v. Sullivan County, 199 Pa. 594, at page 597. If supervisors have no power to change the route of an opened road, even if it be wrong, they surely have no power to change the route of a road which has been traveled by the public for a quarter of century, simply because another route would be more desirable. So that, if the new road is a public highway, the township has now two roads to keep up instead of one. But we are of opinion that the evidence is insufficient to warrant a finding that it was established as a highway in any lawful mode. If there is any ground upon which the claim that it is a highway can be sustained, it is upon the ground that there was a dedication by the owner. But apart from the objection that the supervisors could not bind the public and make this a highway by an agreement with the owners — see Penna. Canal Co. v. Shirley and Union Townships, 18 W. N. C. 397 — there is the fundamental objection that the consent of only one of the owners is shown, and that equivocal. It is to be noticed further in this connection, that the witness who testified as to the consent of this heir was compelled to admit upon cross-examination that he did not know whether the other heirs knew that the road had been put through their land. As we have already said, there was ample evidence to sustain a conviction apart from the acts committed on the new road, but this consideration does not obviate the objection that the learned court admitted those acts in evidence and refused to charge that there could be no conviction therefor. It is impossible for us to determine upon what evidence the jury based its verdict, or to say that these erroneous rulings did not constitute prejudicial error.

Counsel for the commonwealth say in their printed brief, “ that it might be admitted that the owners of the land that was appropriated, with or without their consent, by the citizens of this township for the section of new road, could fence it up, obstruct it in reclaiming the land, without committing any crime or without any liability to the township. It is not a public road so far as their interests are concerned.” This admission is one we think the commonwealth is compelled by the evidence to make, but, being made, it is a conclusive reason why there could be no conviction under this indictment for acts of trespass committed upon the new road. It is impossible upon an indictment charging a public nuisance in obstructing and injuring a public highway to convict upon evidence which shows that it is not a public highway. It cannot be made a public highway “by a short cut through the criminal court: ” Com. v. Phila. & Read. R. R. Co., 135 Pa. 256.

The remaining questions raised by tbe assignments of error need not.be discussed. It is sufficient to say that we find no reversible error in the record, except in the rulings and the portions of the charge relative to the acts committed upon the new road.

Judgment reversed and a venire facias de novo awarded.


text:
    Turbett Township Overseers of the Poor, Appellants, v. Port Royal Borough Overseers of the Poor.

      Poor laws — Settlement—Widow—“ Unmarried person not having a child” — Service.
    Where a widow whose husband has been dead for ten years and whose only child, a daughter, has been married and living with her husband for ten years, hires and serves in a poor district for eight years, she thereby gains a settlement, as an “unmarried person not having a child.”
    The Act of June 13, 1836, sec. 9, par. 5, P. L. 539, providing the method by which a settlement may be acquired “by any unmarried person, not having a child,” is to be construed as the similar English statute was construed to the effect that if such person has no child that can be a burden to the parish in consequence of his acquiring a settlement there, he shall be considered as not having a child within the meaning of the statute.

      Statutes — C onstruction.

    The effects and consequences of the proposed construction of a law, as well as its reason and spirit, will be looked into in determining the legislative intent, which is the criterion by which all acts must be construed. Hence, if there is room for cons'truction, the court will prefer that construction which is most consonant with the purpose for which the act was passed.
    Argued March 12, 1907..
    Appeal, No. 19, March., 1907, T. by plaintiff, from decree of Q. S. Sept. T., 1906, No. 1, refusing order of removal in case of Turbett Township Overseers of the Poor v. Port Royal Borough Overseers of the Poor.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for order of removal. Before Siiull, P. j.
    The facts are stated in the opinion of the Superior Court.

      Jürror assigned was refusal of order of removal.

      May 13, 1907 :

      J. N. Keller, for appellants.
    — When the reason of the law ceases so does the law itself, for reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself: Nice’s App., 54 Pa. 200 ; Com. v. Fraim, 16 Pa. 163.
    It has been held that a mother with a bastard child can gain a settlement under this clause, because the settlement of such bastard is the settlement of the mother at the time of its birth, and the bastard can acquire no other settlement obtained by the mother after its birth: Buffalo Twp. v. Lewisburg Boro., 1 Pa. C. C. Rep. 121; Overseers of Forest City v. Overseers of Damascus, 176 Pa. 116.
    So it was held that a widower with a child who is emancipated is a person not having a child, and may, therefore, gain a settlement by hiring and service: Rex v. Cowhoneyborne, 10 East, 88; Rex v. Uckfield, 5 M. & S. 214.

      F. M. M. Pennell, of Atkinson Sf Pennell, for appellees.—
    This case is ruled by the decision of the Supreme Court in the case of the Directors of the Allegheny County Home v. Over- • seers of South Buffalo Twp.: 26 Pittsburg Legal Journal, 115.
    When the words of a statute are plainly expressive of an intent, the interpretation must be in accordance therewith: Bradbury v. Wagenhorst, 54 Pa. 180; Penna. R. R. Co. v. Pittsburg, 104 Pa. 522, 555.
   Opinion by

Rice, P. J.,

Cely McAlheney, a widow, whose husband has been dead for ten years and whose only child, a daughter, has been married and living with her husband for ten years, hired and served in the poor district of Port Royal borough for eight years prior to June 17,'1905. The question is, whether she gained a settlement thereby.

The act of 1836’ provides that a settlement may be gained in any district “by any unmarried person, not having a child, who shall be lawfully bound or hired as a servant, within such district, and shall continue in such service during one whole year : ” Act of June 13, 1836, sec. 9, par. 5, P. L. 539. This is substantially the same as a clause of sec. 17 of the act of March 9,1771,1 Sm. L. 332, relative to the same subject, and, like many other provisions of the statute, was evidently taken

from the English statute, 3 W. & M.; c. 11, s. 7. By that enactment it was provided that, “ if any unmarried person, not having a child or children, shall be lawfully hired into any parish or town for one year, such service shall be adjudged and deemed a good settlement therein.” This section was construed by the English courts to mean, that if such person “ has no child that can be a burden to the parish in consequence of his acquiring a settlement there, he shall be considered as not having a child within the meaning of the statute : ” The King v. Inhabitants of Uckfield, 5 Maule & Selwyn, 214; Anthony v. Cardigan, 2 Bott’s Poor Law Cases, 194; 3 Burn’s Justice, 411; The King v. Inhabitants of Cowhoneyborne, 10 East, 288. To illustrate the application o£ the clause as thus construed, we quote from the opinion of Lord Ellenborough in the last cited case: “ The daughter having been originally placed, when an infant, by her father in her uncle’s family, continued to live with her uncle after she became of age as part of his family; receiving no assistance from her father, and being at liberty to depart from her uncle’s when she pleased, and to go where she chose. She was of age, living apart from her father, and having her support from sources independent of him, and was at liberty to quit her uncle when she pleased, as she herself considered. If this be not emancipation, it would be difficult to say what is so, and when it can take effect. Then if she were emancipated after she came of age, it follows that the father, by the construction which has been put upon the statute of King William, gained a settlement by a subsequent hiring and service for a year in Teddington as ‘ an unmarried person and not having any child.’ ”

Our statute differs from the English statute in that time is predicated of the service and not of the contract, and consequently what is required seems to be no more than a continuance in hired service for a year: Heidleberg v. Lynn, 5 Wharton, 430. But so far as concerns the qualifications of the person to gain a settlement by hiring and service, the provision of our statute seems to have been copied from the English statute. There are many decisions of courts outside of this commonwealth to the effect that where congress or the legislature of a state enacts a statute which is a transcript of an English act, that has received a known and settled construction by the courts of that country, that construction at the time of such enactment is to be deemed as accompanying and forming an integral part of the same : Endlich on Interpretation of Statutes, sec. 871. It is not asserted that the proposition has been unqualifiedly established in Pennsylvania, nor, if it has been, that this would be a proper case for application of the general rule ; but it is safe to say that the adoption of this particular statutory provision without change furnishes ground for persuasive argument that the legislature of 1836 had in contemplation the settled construction that had been placed upon it years before by the English courts, and hence that those decisions are entitled to very great weight.

In prescribing the conditions upon which a settlement may be gained by hiring and service, why should the legislature make a distinction between an unmarried person, who has no offspring, and an unmarried person, who has a married daughter that has removed from the domicile of the parent, acquired another settlement, become the head of another family, and cannot gain a derivative settlement in the district to which the parent thereafter removes? Such discrimination would be purely arbitrary, and no reason can be conceived for presuming that the legislature intended to make it, unless it be that the word “child” has a fixed and unvarying meaning, and therefore the use of the words “ not having a child ” precludes every other presumption that might be suggested. But the word “ child ” has many meanings 'besides the primary one, and' in determining which one is to be selected in the construction of a statute, regard must be had to the connection in which it is used. For example, in the construction of section 16 of the Act of April 8, 1833, P. L. 249, it was held that the provisions in relation to advancement, which in terms are limited to the case of “ any child of the intestate,” apply not only to children, but to grandchildren who have been advanced: Eshleman’s Appeal, 74 Pa. 42; Storey’s Appeal, 83 Pa. 89. This conclusion was put upon the ground that in construing a statute the real intention will prevail over the literal sense of the terms; that the manifest design of the law is to equalize intestate’s property among all his children, and that it is equally clear that it was not the design of the lawmakers to put a grandchild upon a higher plane than a child would occupy if living. Many other illustrative cases might be cited. Indeed, in the construction of this very section of the act of 1836, it has been held that the immediate illegitimate offspring of an unmarried woman is not such a child as the legislature intended to include in the use of the words “not having a child:” Overseers of Forest City v. Overseers of Damascus, 176 Pa. 116. See also opinion of Judge Bucher, in Buffalo Twp. v. Lewisburg Boro., 1 Pa. C. C. Reps. 121. This conclusion cannot be sustained upon the ground that such offspring was not in any sense of the word a child of the woman whose settlement was in question. It is sustainable, however, upon the ground that the intention of the legislature in putting in the qualifying clause “ not having a child ” was to prevent the application of the section to the case of a person who has’a child or children that can be a burden to the poor district in consequence of bis or her acquiiing a settlement there. Apart from the analogy of the case of Overseers of Forest City v. Overseers of Damascus, 176 Pa. 116, to the case in hand, it is pertinent because it shows that the words of the section are not so plain and unambiguous as not to require or admit of construction. It would be a strange result, if it should be held that Cely McAlheney, the pauper, did not gain a settlement in the borough of Port Royal by her continuous service for eight years under a contract of hiring, but would have gained one if her married daughter, who could not possibly have gained a derivative settlement there through her, had been illegitimate. It is difficult to conclude that the legislature actually intended to make the mere fact of having offspring at the time of the hiring a conclusive bar against gaining a settlement by hiring and service in the one case and not in the other. It is an old rule of construction that where words in a statute are susceptible of two constructions, of which one will lead to absurdity, the other not, the latter is to be adopted, though it be not a literal construction but a liberal one: Philadelphia v. Ridge Avenue Pass. Railway Company, 102 Pa. 190 -197. The effects and consequences of the proposed construction of a law, as well as its reason and spirit, will be looked into in determining the legislative intent, which is the criterion by which all acts must be construed. Hence, if there'is room for construction, the court will prefer that construction which is most consonant with the purpose for which the act was passed. There are cases where in order to carry out the obvious intention of the legislature the word townships has been held to include the different municipal divisions relating to roads, where no special provision is made: Road in Milton, 40 Pa. 300. So also the cases are numerous in which the words of a statute, though general, have been given a limited construction, if necessary in order to carry out the intent of the law; as, for example, where the word “ person ” has been construed to mean natural person. As was said .in Big Black Creek Improvement Company v. Commonwealth, 94 Pa. 450, here if anywhere the rule should apply that “ statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and, where discovered, it ought ¿to be followed with judgment and discretion in the construction, though that construction may seem contrary to the letter of the statute.”

Looking at the question from every standpoint, we are of opinion that the long-settled construction of the statutory provision, which we may safely infer was in the mind of the legislature in adopting it, should not now be departed from; indeed, that it could not be departed from without producing absurd results which the legislature did not intend. We conclude that under the undisputed facts Cely McAlheney had acquired a legal settlement in the poor district of Port Royal borough. The case of directors of Allegheny County Home v. Overseers of South Buffalo Township, 26 Pittsburgh Legal Journal, 115, is not in point, for in that case the pauper had a legitimate child, who was still a minor and had not been emancipated.

The order is reversed at the costs of the appellees, and the record is remitted to the court below with directions to grant the order of removal, and to make such further order as to costs, charges and expenses as the circumstances may require.


author: Henderson, J.,

text:
    Puzis v. Temko, Appellant.

      Bailment — Pledge—Evidence—Parol evidence — Fraud.
    In an action of trespass for the conversion of a stock of goods, where the defendant relies upon a bill of sale, absolute on its face, from the plaintiff to himself, and the plaintiff claims that the transaction was in fact a pledge to secure a debt, he may show that he subsequently gave to defendant a sum of money in consideration of extension of time, and that the defendant permitted him to keep the goods, and make sales therefrom, without an accounting. In such a case evidence of what took place at the time the bill of sale was executed is competent as bearing on the new agreement for thij extension of time. It was not necessary for the trial judge to instruct the jury concerning the nature of the testimony necessary to establish fraud in the execution of the bill of sale, inasmuch as the subsequent agreement, if established, shows that the bill of sale was in fact a pledge, and so recognized by defendant.
    Argued Feb. 26, 1907.
    Appeal, No. 3, Jan. T., 1906, by-defendant, from judgment of C. P. Luzerne Co., Oct. T., 1904, No. 932, on verdict for plaintiff in case of George Puzis v. Max Temko and Balph Schwartz.
    Before Bice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for an alleged wrongful conversion of a stock of goods. Before Halsey, J.
    The court charged in part as follows :
    As between Puzis and Schwartz this bill of sale is conclusive. It was executed by Puzis, it was acknowledged solemnly before the magistrate to be his act and deed, and an acknowledgment of delivery of the property is also contained in the paper. I say this paper standing alone, would be conclusive as between Puzis, and Schwartz, of the conveyance of this personal property.
    It went along for some time and I think about August 15, 1904, plaintiff went, he says, to the store of Mr. Schwartz and there had another conversation with him with reference to this bill of sale of this property, and at that time made payment to him of the sum of $5.00. [Was there anew contract with reference to this property entered into at that time between plaintiff and defendant? Did Puzis pay the $5.00, and, if he did, what did he pay it for? You must take his testimony with reference to this payment, also the testimony of Mr. Schwartz with reference to payments made subsequently to the execution of the bill of sale of August 6, 1904.
    Was there a new relation entered into, in the nature of an agreement between these parties, and what was it, and what did it have reference to ?] [1] It then passed along until. August 30, 1904. On August 30, 1904, it is alleged on the part of the defendants, that Mr. Schwartz conveyed all his right, title and interest in this property to Max Temko; a paper duly executed and properly proven ],ias been submitted to us and it has not been gainsaid, a solemn contract in writing between Temko and Schwartz, showing, the transfer of this property. We are free to say to you there has been no testimony here going to show this paper was not duly executed and delivered and that it did not transfer all the right, title and interest of that property to Max Temko. On August 31, 1904, before noon, Max Temko went upon the premises with a horse or with horses and a wagon, and removed from the premises all the personal property, as he alleged, that was specified in the contract or in the bill of sale of August 6,1904. [Did he have the right at that time to make that removal of that property ? He had the right if there was not a subsequent contract to the one of August 6, 1904.] [2] He removed all the personal property that was designated in the schedule attached to the bill of sale of August 6, 1904. He had no right to remove any other property not designated in that bill of sale. He was specifically confined, in removing, if he had the right to remove at all, to only the property that was passed by the bill of sale from Puzis to Ralph Schwartz on August 6, 1904.
    Verdict and judgment for plaintiff for $800. Defendants appealed.

      .Errors assigned were (1, 2) portions of charge as above, quoting them; and (8) “It being sought to impeach the. effect of the bill of sale, by alleged misrepresentation of its contents and to supplement the same by a subsequent agreement for redemption of the goods depending upon the original agreement not embraced in bill of sale, the court erred in failure to instruct the jury concerning the elements of fraud and the nature of the testimony required to establish it.”
    April 15, 1907:

      John AT. Bigelow, with him O. W. Kline, for appellants,
    cited: Moorhead v. Scofield, 111 Pa. 584; Given v. Kelly, 85 Pa. 309; Morgan v. Negley, 14 P. L. J. 223; Cadbury v. Nolen, 5 Pa. 320: Richards v. Willard, 176 Pa. 181; Tietz v. Philadelphia Traction Co., 169 Pa. 516.

      S. 8. Berring, for appellee,
    cited: Parcell v. Grosser, 109 Pa. 617; Nye v. The Pittsburg Co., 2 Pa. Superior Ct. 384; Steel v. Loeb, 5 Pa. Superior Ct. 238 ; Stafford v. Stafford, 27 Pa. 144.
   Opinion by

Henderson, J.,

That portion of charge of the trial judge set forth in the first and second assignments of error did the appellants no possible harm. It was predicated of the plaintiff’s allegation that he had a right of redemption of the goods described in the bill of sale and that ten days after the bill of sale was executed the defendant, Schwartz, extended the time for redeeming the goods to September first. The plaintiff’s allegation was that the transaction between him and Schwartz was the pledge of his goods for a loan of money to pay his rent; that he was to have the privilege of redeeming within ten days; that within the ten days he applied to Schwartz for an extension of the time and that in consideration of 15.00 by him then paid to Schwartz the latter agreed that the time for redeeming the goods should be extended until September first. The bill of sale was absolute on its face and contained no reference to the right of redemption. The jury was instructed that it conclusively passed the title of the property to Schwartz. The appellants contend that the defense is an attempt to change the terms of the written contract by insufficient parol evidence. The case as presented by the plaintiff, however, sets up a new contract for a valuable consideration, made on August 15, under which the plaintiff had the right to pay back the money and redeem the goods. Evidence of what took place at the time the bill of sale was executed was competent as bearing on the agreement of August 15. If, as the plaintiff claims, the transaction was a pledge, simply, that fact would throw light on what occurred on August 15, and would explain why Schwartz accepted the *$5.00 and extended the time within which the plaintiff might pay him the money. If the agreement was made, as claimed by Puzis, on August 15, Schwartz recognized the title to the goods to be in Puzis. Puzis’ testimony is corroborated by the fact that the goods were left in his possession from the time the money was obtained from Schwartz until Temko took them away, during which time Puzis added to the stock and sold therefrom, as he claims, without accounting to Schwartz. It further appeared in the examination of the alderman who prepared the bill of sale, that Temko, who was attending to the business for Schwartz, told him it was the understanding that if the money was paid back within ten days the plaintiff was to have the goods ; that the money was to be paid to Schwartz, and that this part of the agreement was not put into the bill of sale because the alderman did not think it was necessary. It further appeared that the plaintiff was prepared to pay to Schwartz the amount he had furnished on the goods. There was evidence, therefore, from which the jury might find that Schwartz treated the transaction as a bailment, and that he agreed to extend the time for redeeming the property until September 1. As Temko carried away the goods before that time and asserted an absolute title thereto, the plaintiff’s right of action was complete if the facts were found in his favor.

Complaint is made in the third assignment that the court did not instruct the jury concerning the nature of the testimony necessary to establish fraud in the execution of an instrument in writing. The view which the court took of the evidence rendered such instruction unnecessary. The court submitted the question to the jury as to what took place on August 15 when it was claimed by the plaintiff a new agreement was made. This agreement, if made, accorded with the plaintiff’s understanding of the original contract, and, having been entered into after the delivery of the bill of sale, was binding on the parties. No request was made for instructions on the subject of fraud in the execution of the bill of sale, nor do we consider it necessary that the trial judge should have so charged as the case was submitted on the assertion of a new agreement.

The assignments are overruled and the judgment affirmed.


text:
    Hess, Appellant, v. Sutton.

      Trespass — Pleading—Possession of land — Evidence—Boundaries— Nonsuit.

    “Not guilty” is the only plea allowed by the act in an action of trespass and by it the plaintiff is put on proof of his possession, actual or constructive, as well as of the injury described in the declaration. Where the land is unimproved, possession will be presumed to follow the title. If the land is improved, that fact shows it is in the actual possession of someone, and in such case the plaintiff cannot rest on his title but must show his possession.
    Where in an action of trespass for cutting timber it appears that plaintiff’s deed described his land as “bounded on the north by unseated mountain land,” and that there were no marks on the ground nor corners fixed, and it also appears that the plaintiff did not know where his north line was, a nonsuit’ is properly entered.
    Argued Feb. 26, 1907.
    Appeal, No. 28, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., May T., 1905, No. 161, refusing to take off nonsuit in case of Hiram L. Hess v. Leo A. Sutton and William H. Freeman.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for cutting timber. Before Ferris, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      A. Ricketts, with him Alex. Ricketts, for appellant.
    — The defendants admit in their plea that they entered the close of the plaintiff and committed the acts complained of, but claim they are not guilty of trespass because they have the right of possession of said close, and declare they are ready to verify that claim. And the burden of proof of this is upon the defendants: Olewine v. Messmore, 128 Pa. 470.
    April 15, 1907:
    The land where the trespass was committed being unimproved, this title of itself would. give him the constructive possession, if there were nothing else in his case: Caldwell v. Walters, 22 Pa. 378 ; Craft v. Yeaney, 66 Pa. 210; Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127; Tustin v. Sammons, 23 Pa. Superior Ct. 175; Wilkinson v. Connell, 158 Pa. 126.

      R. Laura Gannon, for appellees,
    cited: Wilkinson v. Connell, 158 Pa. 126; Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127; Whitney v. Backus, 149 Pa. 29.
   Opinion bv

Henderson, J.,

The plaintiff’s action whs trespass for cutting timber. He claimed title under a deed containing the following description : “ Beginning at the northwest corner in Columbia county line, bounded on the north by unseated mountain land, on the east by land of Charles Wickham, thence on south and east by lands of Casper Bailey, thence again on south by lands of Casper Bailey, thence on west and south by land of William Seward, and west by line of Columbia county. Containing 116 acres of land, be the same more or less. Being part of larger tract of land surveyed in the warrantee name of Robert Gray. That is 96 acres thereof.” The preceding deeds offered in evidence contained a description of the land substantially the same. The important question in the case was as to the location of the north line of the plaintiff’s land. It was proved and not controverted that the land was on a rough mountain side, uninclosed, and unimproved. The plaintiff’s right to recover depended on his ability to show a line to which his title ran or to which he was holding by occupancy. We do not find in the record any evidence showing the location of the plaintiff’s north line. The description “ north by unseated mountain land” could hardly be more indefinite. No marks on the ground were established; no surveyor was called to prove where the lines were and no cornel's were fixed. The plaintiff, himself, did not undertake to state where his line was. In reply to the question, “ Did you know exactly where the north line of your land was?” he answered, “I never had it surveyed at that time. • I just bought as it was handed down from one claim to the other, and I bought from John Miner Taylor the right, title and interest.” On cross-examination, to the inquiry, “ You say you don’t know where your line is on the north? ” he replied, “ Only as it runs to unseated land.” He not only did not know where his own line was, but was also ignorant of the location of Wickham’s north line, his northeast corner. Under the authority of Whitney v. Backus, 149 Pa. 29, the plaintiff was put upon proof both of his possession and of the trespass complained of. Notwithstanding the earnest argument of the learned counsel for the appellant we do not feel at liberty to disregard that case. It is entirely consistent with the Act of May 25,1887, P. L. 271, establishing the plea in actions of trespass. “Not guilty” is the only plea allowed by that- act in an action of trespass and by it the plaintiff is put on proof of his possession, actual or constructive, as well as of the injury described in the declaration. Where the land is unimproved, possession will be presumed to follow the title. 'If the land is improved, that fact shows it is in the actual possession of someone, and in such case the plaintiff cannot rest, on his title but must show his possession: Wilkinson v. Connell, 158 Pa. 126. The appellant contends that both actual and constructive possession were established, as a part of the plaintiff’s land contained a dwelling house, a barn and other improvements. The actual occupancy of part of the premises does not aid, however, in determining the extent of the plaintiff’s holding. In the absence of some data from which the jury could ascertain how far north the plaintiff’s land extended it would be impossible to declare whether the defendants had committed a trespass or not. We do-not find any evidence in the case from which it could be determined that the trees cut by the defendants were on the plaintiff’s land.

The judgment is affirmed.