author: Orlady, J.,

text:
    Milligan v. Marshall, Appellant.

      Ground rent — Spanish milled dollars — Tender—Interest.
    1. Where a ground rent deed reserves a yearly rent in a stated number of Spanish milled dollars each weighing seventeen pennyweights and six grains at least, a tender made of the exact kind of money stipulated in the deed, is a good tender, and is not defeated by the fact that it does not include interest for nine days, amounting to one and one-quarter cents. The demand of one and one-quarter cents even as interest is too small and trifling a matter with which to vex the courts.
    2. An owner of a ground rent reserved in the deed as so many Spanish milled silver dollars can only recover the present current value of such dollars.
    Argued Oct. 9, 1907.
    Appeal, No. 49, Oct. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 2,626, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary L. Milligan et al.

      v. Alexander Marshall, Covenantor, and Harry Weinreich, Owner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover ground rent.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Henry M. DuBois, for appellant.
    That appellant is entitled to pay the ground rent as it accrues in Spanish milled silver dollars cannot be doubted. The law has been plainly fixed by rulings both of our own Supreme Court and that of the United States: Johnson v. Ash, 142 Pa. 45; Mather v. Kinike, 51 Pa. 425; Dutton v. Pailaret, 52 Pa. 109; Christ Church Hospital v. Fuechsel, 54 Pa. 71; Butler v. Horwitz, 74 U. S. 258.
    Plaintiff, however, objected to the sufficiency of the affidavit upon the ground that the tender averred was not accompanied by interest for the eight days during which it remained unpaid.
    Appellant contends that this is not sufficient to prevent the tender from being a full and substantial one: Christ Church Hospital v. Fuechsel, 54 Pa. 71; Boyden v. Moore, 5 Mass. 365; Dwinel v. Soper, 32 Maine, 119; O'Grady v. Barnhisel, 23 Cal. 287; Workman v. Worcester, 118 Mass. 168; Thatcher v. People, 79 Ill. 597; Huntington v. Winchell, 8 Conn. 45; McQuesney v. Hiester, 33 Pa. 435.
    Appellant contends that as between the original parties to the ground rent deed, Spanish milled silver dollars named therein were money: Sachse v. Myers, 15 Pa. Superior Ct. 425; Streaper v. Fisher, 1 Rawle, 155; Conable v. Van Housen, 11 Pa. Superior Ct. 497.
    The tender averred in the affidavit having been made before suit brought should have caused the court either to discharge the rule (see Derr et al. v. Coar, 1 W. N. C. 433, and Wheeler v. Woodward, 66 Pa. 158), or to have refused to enter a general judgment with costs: North Penna. Fire Insurance Company v. Susquehanna Fire Insurance Company, 2 Pearson, 289.
    Appellant would not have complained had the court directed judgment to be entered against him in American money equivalent to the value of Spanish milled dollars, viz.: $9.25 without costs. The learned court, however, erroneously directed the entry of judgment for $14.25, American money, with costs.
    February 26, 1909:
    The settled law of the land is, that the judgments are to be entered for current money equal in present value to the coin, including Spanish silver dollars, in which the debt was originally made payable: Cadwalader on Ground Rents, 199, 200; Shoenberger v. Watts, 5 Phila. 51.
    Furthermore, a jury should have been called to assess the damages: Mervine v. Sailor, 5 Phila. 422.

      Carlyle H. Ross, with him John G. Johnson, for appellee.
    Appellant admits that interest was due, was not tendered, and yet asks this court to say that the failure to tender interest must be disregarded, because the same was trifling. Is the court willing to agree to this proposition? If so, just what amount of interest must be due on a debt to escape the objection? Davis v. Sabita, 63 Pa. 90.
    If the court is impressed by the smallness of the amount of interest claimed, and it must be remembered that that is the matter directly in controversy, it may not be uninstructive to refer to the case of Pindar v. Wadsworth, 2 East, 154, where the court permitted the plaintiff to recover one farthing (half a cent) damages, that being the actual amount thereof by calculation. Interest runs on arrears of ground rent: McQuesney v. Hiester, 33 Pa. 435; Buck v. Fisher, 4 Wharton, 516.
    Appellant contends also that the court erred in entering a general judgment and should have directed an inquiry as to the value of the coin called for by the deed. In the absence of any evidence in the court below as to the value of Spanish dollars, it is submitted that the court was justified in assuming that the value was the same as in the currency of the United States and that the judgment as entered was proper.
   Opinion by

Orlady, J.,

By deed of Jacob Heltzheimer to Alexander Marshall, dated September 8, 1797, and duly recorded, there is “reserved a yearly rent of Twenty-eight Spanish Milled Silver Dollars, each weighing seventeen pennyweight and six grains at least, and one-half of such a dollar payable half yearly on the first day of the months of April and October, in every year forever.” This action was brought October 12, 1906, to recover six months’ ground rent to October 1, 1906,. the amount claimed being $14.25, together with interest thereon from October 1, 1906.

The affidavit of defense states that on October 9, and before suit was brought, a proper tender was made of the full amount of the exact kind of money stipulated in the deed, and that the acceptance thereof was refused. This tender was renewed in the affidavit of defense for the described money for the six months’ ground rent, due October 1, 1906. The court made absolute a rule for judgment against the appellant, for want of a sufficient affidavit of defense, and the damages were assessed at $14.58. No opinion was filed in the court below, consequently we are at a loss to know exactly upon what ground and for what reason the court made its order.

The ground rent is irredeemable, and the appellant claims the right to pay it as it accrues, in the kind of money called for in the deed. It is conceded on argument that the real question is one of tender, and it is urged by the appellee that the tender was not good, for the reason that it did not embrace interest on the amount admitted to be due; the tender having been made nine days after the ground rent matured, this interest being about one and one-quarter cents.

A creditor is not bound to accept less than the full amount of his demand, and a tender of part-only of a single entire demand is of no effect; it makes no difference that the insufficiency in amount arises from an honest mistake on the part of the debtor; the mistake must be regarded as his mistake: 28 Am. & Eng. Ency. of Law (2d ed.), p. 17.' The court is obliged judicially to notice the fact that the ground rent reserved in the deed is at present a debased currency for which we have only a computed equivalent in the money, current as such in this country. The character of the circulating medium and the popular language in reference to it are to be judicially noticed by the court: Was-son v. First National Bank of Indianapolis, 107 Ind. 206; 17 Am. & Eng. Ency. of Law (2d ed.), 899.

If the question turned alone on the item of interest alleged to be claimed, we would hold that the demand of one and one-quarter cents even as interest was too small and trifling an item with which to vex the courts. The smallest coin known as current money could not be used to make payment of the disputed item. In Boyden v. Moore, 5 Mass. 365, it was held to be not a proper case to apply the maxim, yet it was said, “That the law will not regard trifles, is, when properly applied, a correct maxim. ... In calculating interest, there may, and probably must arise fractions not to be expressed in the legal money of account; these fractions are trifles, and may be rejected. In making payments it is sometimes not possible, from the value and divisions of the current coin to make the exact sum; if the payment be made, as nearly as it can conveniently be made, the fractional part of a small coin may be neglected; it is a trifle; ” and in Dwinel v. Soper, 32 Maine, 119, it is stated, “An amount which cannot be paid in any legally current coin of the country, must of course be disregarded. A literal application of the maxim would authorize the court to disregard also in the estimate of value of one of the least of the current coins.”

The reason for refusing the tender is not stated, whether it was because of the debased currency, as it was called by the appellee, or on account of the one cent or one and one-quarter cents of interest. If for the reason that the one cent or one and one-quarter cents was withheld, it may well be held to be not a sufficient reason, being too insignificant to be considered. As between the original parties, the ground rent reserved in Spanish milled silver dollars was recognized and in use at that time as money throughout the United States, and as described in the ground rent deed, it came within the definition of money. However, such coins were demonetized by act of congress 1857, February 21, sec. 3, and while the legislation may not extinguish the debt, it may affect the current value of the coin mentioned in the contract, and with which the debt may be paid or tendered.

In Johnson v. Ash, 142 Pa. 45, the Supreme Court held that: "It is to be presumed that when the ground rent was created, the reservation of the rent in Spanish milled silver dollars was for the benefit of the owner of the rent. It was certainly not for the benefit of the ground tenant. The plaintiffs having enjoyed what benefit there was under the contract, may well take the disadvantages thereof, if there are any.” The legislation on this subject is carefully considered in the opinions filed in Cook v. Lovett, 65 Legal Intelligencer, 240, in which the authorities are carefully reviewed.

An agreement to pay in one of several lawful kinds of money will be enforced as between coin and paper, but not as between gold and silver, payment as between the latter being at the election of the payor, provided always that the coin chosen is legal tender at the time of payment: Rankin v. Demott, 61 Pa. 263; Morris v. Bancroft, 1 W. N. C. 223; Reinhart v. Collins, 2 W. N. C. 305. The plaintiff claims that the dollar value remains unchanged, by bringing his suit for $14.25. The appellant concedes that had the judgment been entered against him, in the money equivalent of the value of Spanish milled silver dollars, viz.: $9.25 without costs, he would have been content, under authority of Christ Church Hospital v. Fuechsel, 54 Pa. 71; Cadwallader on Ground Rents, 200; Shoenberger v. Watts, 5 Philadelphia, 51.

This contract is not hampered with the added and alternative provisions mentioned in some of the cases, as “or lawful money of the United States,” or “specie gold or silver money of the United States,” as an elective equivalent of the kind of money first designated in the contract. Had payment of this ground rent been tendered in any other kind of coin or money than that specially stipulated for, it could have been rightfully refused by the owner of the ground rent, as not being in compliance with the money specifically designated in the deed, and as the claimant in this case seeks to recover the ground rent in the equivalent of the current money of the day, he must accept that substituted money on the basis of present current value, which is not to be determined by the mere number of dollars as of the date of the contract.

The tender being good, it is not necessary to consider the other questions raised by the record, and the judgment is reversed, the record to be remitted with a procedendo.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Clever, Appellant, v. Clever.

      Vendor and vendee — Contract—Written memorandum — Conflicting evidence — Statute of frauds.

    1. Where in an action to recover back money paid under an agreement to purchase real estate, the plaintiff alleges a purely oral agreement, while the defendant alleges that the terms of the agreement were set forth in a written memorandum signed by himself, but not by plaintiff, and the terms of the two agreements are different, it is for the jury to determine from the conflicting testimony what in fact was the agreement between the parties.
    2. In such a case even if the written memorandum is shown by overwhelming evidence to have been dictated by the plaintiff, and the various terms thereof suggested by himself, this will not shift the function of determining the disputed facts from the jury to the presiding judge.
    3. It does not follow that because, in a proceeding for specific performance, the production of a memoradum in writing, signed by the vendor alone, meets the requirements of the statute, the mouth of the vendee is closed from asserting that the contract evidenced by the writing is not his contract, that he never assented to it or adopted it and that it was nothing but the self-serving declaration of the party whose act alone it, on its face, purported to be.

      Vendor and vendee — Resale—Measure of damages.

    4. The measure of damages, where there has been a resale, is the difference between the price agreed to be paid by the vendee and that obtained on a resale. It is predicated of course on the undisputed facts in the case that the resale was a public one, fairly conducted, after full notice to the public and the vendee, upon the same or as advantageous terms as the first.
    Argued March 9, 1908.
    Appeal, No. 13, March T., 1908, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1907, No. 441, on verdict for defendant in case of Joseph Clever v. Conrad Clever.
    Before Rice, P. J. Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Foreign attachment in assumpsit. Before Sadler, P. J.
    The court charged in part as follows:
    The plaintiff in this case has brought the present action to recover from the defendant the sum of $150 paid him on October 15, 1904, on a contract which he, the defendant, Conrad Clever, made on that day to sell him a farm in Southampton township, Cumberland county.
    The agreement of sale so signed by the defendant, a copy of which has been offered in evidence, is as follows:
    “Shippensburg, Pa., Oct. 15, 1904.
    “I have this day sold to Joseph Clever my Farm situated Cleversburg containing 100 acres more or less for Forty two dollars and fifty cts per Acre on the following terms I am to releas to the said Joseph Clever the lease now held by Russell & Hykes on a sertan no of acres now in peaches | of grain in ground to be delivered in the bushel. No straw or Fodder to be removed off said farm. No timber to be cut on said farm. Buildings to be left in a reasonabl condition. Insurans Policies to be transferred and all taxes to be Paid in full for 1904. One hundred and fifty cash. Five hundred or as much as can be raised on the first of April, 1905. Bal to be secured by mortgage at at 4%.
    “Witn my hand,
    “Conrad Clever.”
    The plaintiff contends, and has testified that it was agreed, and that the defendant stipulated, and that it was a condition of the purchase by the plaintiff, Joseph Clever, that a certain lease which had been made of a portion of the farm for a peach orchard to Russell & Hykes Brothers should be released, as stated in the article, but that not only was Conrad Clever to secure the release thereof, but that he was to accomplish this by the middle of the following week, and that he was also to notify him, Joseph Clever, that he had so secured the same; the latter desiring to take possession of this portion of the land, and remove the trees growing thereon; that he desired this, because his object in buying the property was to put his son on the farm, who had been employed in Pittsburg, and was there on a visit to his father; that no notice had been given to him that the release of the same had been secured up until Friday, October 21, that he then went to Shippensburg and notified S. K. Clever, the brother of the defendant, that he would not take the property, giving as a reason that no notice had been given him that a surrender of the lease has been secured from the said lessors. Some correspondence passed between the parties addressed by Conrad Clever to Joseph Clever, and by Joseph to Conrad, and one addressed by Conrad Clever to Joseph Clever, on the day of , 1904, was offered in evidence on his behalf. Joseph also states that no hay was to be taken from the farm which had been raised upon it, as well as no straw or fodder; that no timber was to be cut or carried away, or anything removed except what belonged to the tenant, and he called witnesses to show that three loads óf hay had been removed, about three tons each, of the value of, as given by one witness, as we remember, $12.00 or $13.00 per ton.
    On the other hand, the defendant came upon the stand and testified that no agreement as to the procuring of the surrender of the lease was made, except what appears in the agreement; that he did not agree to procure its surrender by the middle of the following week, and did not agree to notify him, Joseph Clever, of its surrender within that time.
    D. B. Russell, who prepared the agreement, also contradicts the plaintiff in this matter; he says that no time was fixed for its surrender to Clever, stating that he wanted it as soon as it could be secured. He also states that on that day he assured Joseph Clever that it would be surrendered, and that on that very night he and the Hykes met and agreed to surrender the lease, but that the paper formally surrendering the same was not executed until the day of January following. Mr. Russell also says that nothing was said about hay — that Joseph Clever was to have all except what belonged to the tenant.
    D. A. Smith was also called and states that he was present when the contract of October 15 was made and written, and he stated how the parties stood about the wagon on which it was written; that he heard all that was said by the parties, and he testified also that there was no agreement that a surrender of the lease was to be secured by the middle of the week, or at any definitely fixed time, or that notice of the surrender was to be given by Conrad Clever to Joseph Clever within that time, nor was any such promise made by Conrad Clever. He states that nothing was said about hay — all stuff on farm to go to Joseph Clever, except tenant’s property.
    [All three of these witnesses state that after the agreement was signed, Joseph Clever stated to Conrad that if he did noti secure the surrender of the lease, he would only pay $40.00 per acre instead of $42.50, and that to this Conrad made no reply. These statements, if made, were inconsistent with the present contention of the plaintiff, and were not denied by him, as we recollect the testimony.] [16]
    S. K. Clever also testifies that on Tuesday, October 18, Joseph Clever called on him at Shippensburg, and told him that he would not take the farm, and that if he had to lose the $150 paid he would do so, or words to that effect, and that he did not then state that he was refusing to carry out his contract because of the failure of Conrad Clever to secure a surrender of the lease. He also states that the hay was removed by him; that it belonged to him.
    Mr. Baker testifies that on Sunday the 16th and Monday the 17th, Joseph Clever spoke to him about leasing the farm to him; that he refused to take a lease of the same, and that on Tuesday evening the 18th, he told him he had concluded not to take the farm, and had thrown it up, or words of similar import.
    The defendant also offered the contract of October 15 to show that while it provides for a surrender of the lease, no time is fixed within which it should be done, except the implication that it would be required before April, when the deed was to be made.
    The letters of Joseph Clever were offered to show that in none of them does he assign as a reason for his refusal to carry out the contract that the lease had not been surrendered by the middle of the week following the sale of October '15, or that he had not received notice of the same — certainly not explicitly. But that he denied in these letters that he had ever made a contract. This was offered as tending to show that his present claim has been an afterthought.
    In this connection it may be but proper to state that Joseph Clever was called in rebuttal and denied that he saw Samuel Clever on October 18, insisting that it was on the 21st, and that it was on that day that he saw Baker, and told him that he had concluded not to take the farm, and his son was called who stated that he was husking corn that week with his father, and that he did not go to Shippensburg until Friday the 21st.
    The defendant also offered testimony showing that a deed was prepared and tendered to Joseph Clever, by letter of Mr. Johnston, dated March 27, and in person on April 1, which was refused.
    [It was further shown that Mr. Clever subsequently advertised the farm at public sale, and resold the same upon practically similar conditions as to payments;] [17] that he realized but $3,825.84 therefor, thus losing the sum of $135.11 on the sale, besides interest on the money which Joseph Clever had agreed to pay from April 1, which would amount to $19.00 additional; that the costs of the second sale were $8.00 and that he paid his attorneys $30.00. He thus contends that instead of being a debtor to the plaintiff, he has lost through the default of the latter not only the $150 paid to him on October 15, but that he has in addition lost the sum of $192.91; and this he insists that the plaintiff is bound to refund him, and he asks that instead of finding a verdict in favor of the plaintiff, you should, and are required, under the evidence, to find a verdict in his favor and against the plaintiff for this loss above $150. As already stated in answer to the points presented, we do not think that under the testimony you can consider the fees paid the attorneys, and the $30.00 paid them should be eliminated, as well as the costs of the second sale, $8.00. [So that the amount that we think proper for you to take into consideration is $154.91, to wit: the loss of the $135.11, the difference in the price of the, sale, and interest from April 1, to the time of the second sale at four per cent. We think, as a matter of law, that that is the damage suffered by the defendant in this case, and the damage which we think you can take into consideration in coming to a determination.] [18]
    [We are satisfied that as no fraud, accident or mistake was alleged or shown in the'making of the written contract, that it is incompetent under the law for the plaintiff, Joseph Clever, to contradict its terms, or to materially modify the contract by fixing the surrender of the lease of the peach orchard at a particular date, and making that of the essence of the contract. Surely is this so when the written paper is testified by three witnesses to set forth what was agreed as to the lease, and three of whom expressly contradict the plaintiff in this matter.] [19]
    [It not being controverted that the plaintiff paid $150 to the defendant on October 15,1904, what will, therefore, be for your consideration is to determine whether Conrad Clever suffered any loss or damage by reason of the default of Joseph Clever to take the farm and comply with the conditions, and if so, how much;] [20] and also whether under the evidence that you have heard in this case, and the law as given you by the court, the defendant is entitled to set off the loss or damages against the claim for the return of the $150, and should you find his loss exceeded that sum, determine how much, and in that case, as the defendant insists, you may find a verdict in favor of the defendant for such sum.
    [The law is that when one enters into a contract for the purchase of a property, and refuses to comply with the conditions, there may be collected from him the loss which the owner of the property suffers by such default, and that this loss or damage may be ascertained by a public resale of the property, on the same conditions as to the payments, and if a partial payment or partial payments have been made, they may be retained to an amount sufficient to pay the owner for the loss, and should these partial payments not be sufficient to reinburse him for the loss, he may sue and recover the excess in an action at law.] [21]
    [The terms must be reasonably as advantageous at the second sale as at the first — there must be reasonable care exercised, and they must be substantially and practically the same.] [22]
    Verdict and judgment for defendant for $4.06. Plaintiff appealed.

      Errors assigned amongst others were (16-22) above instructions, quoting them.

      F. B. Sellers, Jr., and E. M. Biddle, Jr., for appellant.
    The memorandum was not the contract between the parties: Anderson v. National Surety Co., 196 Pa. 288; Harper v. Kean, 11 S. & R. 280; Schwab v. Ginkinger, 181 Pa. 8; Balto. & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Selig v. Rehfuss, 195 Pa. 200; Wetherill Bros. v. Erwin & Wagener Co., 12 Pa. Superior Ct. 259; Holt v. Pie, 120 Pa. 425; Miller v. Fichthorn, 31 Pa. 252; Mellon v. Davison, 123 Pa. 298; Conrade v. O'Brien, 1 Pa. Superior Ct. 104; Sands, Herdic & Co. v. Arthur, 84 Pa. 479.
    A defaulting purchaser at a sale is not liable to respond in damages for loss on resale of the property, if it appears that the terms of the first sale were more advantageous to the purchaser than those of the resale: Hare v. Bedell, 98 Pa. 485; Weast v. Derrick, 100 Pa. 509; Ramsay v. Hersker, 153 Pa. 480; Pepper v. Deakyne, 212 Pa. 181; Freeman v. Husband, 77 Pa. 389; Paul v. Shallcross, 2 Rawle, 326.

      S. B. Sadler, with him W. R. Johnston, for appellee.
    The memorandum of sale signed by the grantor, and accepted by the vendee by the payment of the purchase price therein provided, constituted the agreement of the parties: Witman v. Reading, 191 Pa. 134; Pittsburg Mfg. Co. v. Fidelity Title & Trust Co., 207 Pa. 223; Brodhead v. Reinbold, 200 Pa. 618; Hughes v. Antill, 23 Pa. Superior Ct. 290; Lowry v. Mehaffy, 10 Watts, 387; Tripp v. Bishop, 56 Pa. 424; Johnston v. Cowan, 59 Pa. 275; McFarson’s Appeal, 11 Pa. 503; Smith's Appeal, 69 Pa. 474.
    The deficiencies in a written agreement which may be supplied by parol evidence are not such as contradict or vary the express terms of the writing. The latter can be shown only under an offer to prove fraud or mistake at the time of the execution of the writing: Coughenour v. Suhre, 71 Pa. 462; Railroad v. Swank, 105 Pa. 555; Streator v. Paxton, 201 Pa. 135; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Shepler v. Scott, 85 Pa. 329.
    The general rule as to the measure of damages in such case rests on compensation such as will restore the parties to the same condition as before the contract was made: Hertzog v. Hertzog’s Administrator, 34 Pa. 418; Bowser v. Cessna, 62 Pa. 148; Poulson v. Ellis, 60 Pa. 134; Schmidt v. Ramsay, 6 Pa. Dist. Rep. 584; Girard v. Taggart, 5 S. & R. 19; Tompkins v. Haas, 2 Pa. 74; Coffman v. Hampton, 2 W. & S. 377; Hughes v. Miller, 186 Pa. 375.
    February 26, 1909:
   Opinion by

Head, J.,

The fundamental error, into which the learned trial judge fell, was in disposing of the case as if the agreement, out of which the contention of the parties arose, had been reduced to writing and duly executed by both of them. No such paper appeared either in the pleadings or the evidence. The plaintiff declared that, by an oral agreement, he had undertaken to buy, from the defendant, a tract of land owned by the latter on certain terms and conditions assented to by both, and in pursuance of that agreement had paid $150 on account of the purchase money. He averred that by reason of the failure of the defendant to comply with the terms and conditions agreed upon, he had rescinded the contract, and was entitled to the return of the money he had paid. The defendant, in his affidavit of defense, admits that an agreement had been made “but denies that the same was an oral contract as alleged by the plaintiff and alleges that the said contract was wholly in writing.” He then makes profert of what he alleges to be a copy of the written agreement. This, upon its face, however, purports to be nothing more than an ex parte memorandum of the defendant, signed only by him, reciting the fact that he had made a sale — “ I have sold this day to Joseph Clever my farm,” etc.- — and reciting in turn certain terms and conditions, differing in some particulars from those averred by the plaintiff. Thus at the very threshold of the case the parties were at issue on the important question of fact whether the agreement, into which each admitted he had entered, had been reduced to a written instrument expressing the terms to which both had, in some way, indicated their assent.

The oral testimony delivered by each party was in support of the averments in the statement and affidavit respectively. The plaintiff in his contention was corroborated by the facts, among others, that he had not signed the paper, that it had not been delivered to him, that it did not exhibit the customary receipt declaring the money to have been paid on account of the alleged contract expressed in it, and that the terms therein set forth differed from those contained in a letter from defendant read in evidence. The defendant’s theory was in turn supported by the testimony of those who declared the paper was written by the direction and at the dictation of the plaintiff, that he fully assented to it, that it was left in the possession of one Russell at their joint request and for their joint benefit, etc.

Thus when the testimony closed each party was found maintaining, to the extent of his ability, the same issue of fact he had tendered to his adversary in the pleadings. That such an issue of fact could be properly disposed of only by the jury seems to 'us to be a conclusion needing no argument to support it.

Even if, arguendo merely, we concede the correctness of the statement contained in the opening of the brief of the learned counsel for appellee, that “the evidence is overwhelming that the memorandum of October 15th was dictated by the vendee, and the various terms thereof suggested by himself,” etc., this would not shift the function of determining a disputed fact from the jury to the presiding judge. And it is beside the mark to argue and cite cases to prove that if such a memorandum were to be made the foundation of a bill for specific performance, the statute of frauds and perjuries would not operate to prevent a decree. Our statute does not declare an agreement for the sale of land void “if not reduced to writing and signed by the parties.” It only enacts that “all leases, etc., made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making and creating the same, shall have the force and effect,” etc. It does not follow, therefore, that because, in a proceeding for specific performance, the production of a memorandum in writing, signed by the vendor alone, meets the requirements of that statute, the mouth of the vendee is closed from asserting that the contract evidenced by the writing is not his contract, that he never assented to it or adopted it and that it was nothing but the self-serving declaration of the party whose act alone it, on its face, purported to be.

The error into which the learned judge fell, in this respect, manifests itself not only in the answers to the points presented on either side, but in the general charge as well, as the following excerpt from it shows: “We are satisfied that as no fraud, accident or mistake was alleged or shown in the making of the written contract, that it is incompetent, under the law, for the plaintiff, Joseph Clever, to contradict its terms, or to materially modify the contract by fixing the surrender of the lease of the peach orchard at a particular date, and making that of the essence of the contract.” The first, tenth, eleventh, twelfth and nineteenth assignments are sustained.

After the jury shall have determined what the contract really was they must next determine, under the evidence, whether or not, the defendant, before the rescission by the plaintiff, had failed to perform, in any material particular, the obligations imposed on him by the contract as found. If so, then rescission was the plaintiff’s right and he ought to recover his money. If on this fact the finding be adverse to the plaintiff the defendant may have a verdict for any damages he suffered beyond the purchase money he received. The general rule is “that the measure of damages, where there has been a resale, is the difference between the price agreed to be paid by the vendee and that obtained on a resale. It is predicated of course of the undisputed facts in the case that the resale was a public one, fairly conducted, after full notice to the public and the vendee, upon the same or as advantageous terms as the first:” Bowser v. Cessna, 62 Pa. 148; Pepper v. Deakyne, 212 Pa. 181. It was said, however, in Freeman v. Husband, 77 Pa. 389: “If the terms were materially altered upon the resale, he (the purchaser) was thereby released, for he cannot be held to conditions that did not form part of his contract.” Hare v. Bedell, 98 Pa. 485; Weast v. Derrick, 100 Pa. 509.

As the amount claimed by either party is small, the facts, although supported by contradictory evidence, within a narrow compass, and the principles of law applicable but few, a retrial, along the lines herein indicated, ought to result in a just and final disposition of the cause.

Judgment reversed, and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Barrett v. Minersville Borough, Appellant.

      Boroughs — Streets—Gutters—Drainage of surface water — Injury to property.

    1. A city is not liable to a property owner for the increased flow of surface water over or onto his property, arising merely from the changes in the character of the surface produced by the opening of streets, building of houses, etc., in the ordinary and regular course of the expansion of the city.
    2. Where a borough constructs a paved gutter along a street for the purpose of draining the surface water, and ends the gutter at the borough limits, and the work is done without negligence, and with proper material, and there is no increase of the flow of water caused by any act of the borough itself, the mere fact that the borough plan did not include any provision for disposing of the water, when it came to the end of the gutter, will not render the borough liable in trespass for injuries to property in an adjoining township caused by the water flowing onto it from the end of the gutter.
    3. Under the Act of May 16, 1891, P. L. 75, as amended by the Act of June 12, 1893, P. L. 459, a proceeding before viewers is the appropriate remedy for an injury caused by street improvement in a borough, which is the direct, immediate, necessary and unavoidable consequence of the exercise of the power conferred on the borough by the act; while for an injury resulting from the negligent performance of the work, the remedy is by action of trespass.
    4. The discretionary power to construct sewers, drains and other improvements, and to select a plan for the work, is vested in the municipal authorities.
    Argued March 11, 1908.
    Appeal, No. 69, Oct. T., 1907, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1906, No. 228, on verdict for plaintiff in case of George Barrett, Jr., v. Minersville Borough Corporation.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trepass to recover damages for injuries to real estate. Before Marr, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    flf, on the other hand, you find that the flow of water upon the plaintiff’s premises or upon his leasehold estate was caused by the construction of the gutter, either in the fact that it cast a greater lot of water upon his premises, which was accumulated from the streets surrounding that spot, if you find that is the truth, then he would be entitled to such damages as would compensate him for such an injury arising from such an act on the part of the borough.] [1]
    Defendant presented these points:
    1. If you find that no greater area of ground has been drained by the laying of the gutter on South Delaware avenue, referred to in the evidence, your verdict must be for the defendant. Answer: This request is denied, as, if no greater area of ground has been drained, yet, if the jury find that the construction of the gutter caused a greater flow of the surface water to be cast upon plaintiff’s leasehold estate than existed before the construction of the gutter, and an injury arose therefrom, defendant may be liable. [2]
    6. Under all the evidence your verdict must be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiff for 1175. Defendant appealed.

      Errors assigned were (1, 2, 4) above instructions, quoting them.

      John B. McGurl, for appellant.
    The premises occupied by the plaintiff as tenant, being lower in grade than the street, were, consequently, under a servitude to receive the natural drainage of surface water from said street: Martin v. Riddle, 26 Pa. 415; Reed v. Tarentum Boro., 213 Pa. 357; Sigfried v. So. Bethlehem Boro., 27 Pa. Superior Ct. 456; Fair v. City of Philadelphia, 88 Pa. 309; Allentown v. Kramer, 73 Pa. 406.
    Admitting for the purpose of argument that the construction of this gutter did cause more water to flow upon the premises of plaintiff’s leasehold than previously, we submit that such increase could not, under the circumstances of this case, be construed to be negligence on the part of the defendant: Allentown v. Kramer, 73 Pa. 406; Strauss v. Allentown, 215 Pa. 96.

      February 26, 1909:

      J. W. Clemens, for appellee.
    In regulating the flow of surface water on the streets, municipalities have no right to cast it upon adjacent property: Gift v. Reading, 3 Pa. Superior Ct. 359; Torrey v. Scranton City, 133 Pa. 173; Pittsburg, etc., Ry. Co. v. Gilleland, 56 Pa. 445; Bohan v. Avoca Borough, 154 Pa. 404; Weir v. Plymouth Borough, 148 Pa. 566.
   Opinion by

Rice, P. J.,

The boundary line between the borough of Minersville and the township of Branch crosses the premises of which the plaintiff was lessee at the time of the injury complained of. His premises abut in part on Delaware avenue, a borough street, and in part on the extension of the same highway in the township. The buildings he claims to have been injured are in the township. The borough constructed a paved gutter along Delaware avenue to the line of Branch township and there stopped. The allegation of the plaintiff’s statement of claim is that at this end of the gutter the borough made no provision for carrying off the surface water that ran down it, but willfully, illegally and negligently allowed it to run out of said gutter and thence on and over the private property and yard of the plaintiff, and under certain buildings, in consequence of which the floors were made damp, and decayed, and the machinery in the buildings was rusted and thereby damaged.

It is important to notice that the statement of claim contains no allegation that in consequence of the construction of the gutter a greater body of water was brought to Delaware avenue than would naturally fall or flow there if the gutter had not been constructed; also, that the plaintiff adduced no evidence tending to show that such was the fact. It is claimed that the fact could be found from the testimony of Mr. McCaffey, the defendant’s engineer, but we are unable to so construe his testimony, and we think a jury would not have been warranted in so construing it. He testified: Delaware avenue is an old railroad bed, and the fall of the street, the track, is only about three inches in 100 feet, and when the brewing company came there they wanted to put m a siding, and I adopted agrade; that is, I made a grade to suit this track, and diverted the water for seven hundred feet from Sunbury street down Delaware avenue and carried it through the brewing property.” Again being asked whether the quantity of water flowing in front of the plaintiff’s property had been increased since the laying of the gutter he said: “No, sir; I cut off 700 feet of Delaware avenue down to the brewing company, and that left about 12,000 square feet, but about fifteen or twenty feet from the end of our gutter there is an inlet in the Barrett property.” Later, being asked whether it had been diminished, he testified: “Undoubtedly; because I have taken away 700 feet of the street and diverted the water through the brewing company’s property.” We do not cite this testimony as being conclusive of the question whether the flow of water was increased or diminished, but for the purpose of showing that it does not warrant the assumption, upon which a considerable portion of the argument of plaintiff’s counsel is based, that in the construction of the gutter the water that formerly flowed down Sunbury street was diverted from its natural course and carried down Delaware avenue. So far as any evidence shows, whether that of the plaintiff or of the defendant, it is only the water that naturally flows or falls on Delaware avenue that finds its way to the gutter. While the street is nearly flat, there is a slight descending grade toward the line between the borough and the township, and even before the gutter was constructed, some of the evidence adduced by the plaintiff shows, there was at times a flow of water down the street and thence into his yard. We are warranted in saying, therefore, that the injury complained of did not result from the borough’s diversion or blocicing up of any natural water course, or from its subjecting the highway upon which the plaintiff’s property abuts to the drainage of any other street. The facts of the case distinguish it in material respects from the case of Torrey v. Scranton, 133 Pa. 173, and Bohan v. Avoca Borough, 154 Pa. 404.

While there was evidence from which a jury could find that the increase in the flow and volume of water that came to the plaintiff’s premises was due to the construction of the gutter, there was also evidence from which the jury could find that it was due to the acts of the property owners farther up the street. The plaintiff’s father, who owns the premises, testified as follows in answer to the question whether he experienced any difficulty from the water before the gutter was built: “Yes; a little, but not so much, and now since they put the gutter, you know the lots used to be all open, it is built up at the brewery there and all the lots are filled up, and we have the whole force of the water. The water used to go into the full lots, the empty lots. Now since they put a gutter we have the whole water. We are at the tail end and take all the water. Q. Then you mean to say that all that water that used to go over on the lots goes down the street now? A. Yes; goes down the street.” We quote further from his testimony: “ Q. Then I understand you to say that when heavy rainstorms come, since the gutter was built, the surface of the street would be covered with four or five inches of water? A. Yes, sir. Q. Coming down with great rapidity? A. Yes, sir. Q. And turned into your yard? A. Enough to swim a boat. Q. Why did it come into your yard? A. Because the other lots were all filled up and the brewery lot was all filled up and the other lots are filled up, and we have all the water. We are the tail end and we have to take it all.” If this flow of water, not only in the gutter but over the whole surface of the street, was due exclusively to the filling up of the adjacent lots by the property owners — if that is what the witness meant — the principle thus stated in the syllabus of Strauss v. Allentown, 215 Pa. 96, would seem to be applicable: “A city is not liable to a property owner for the increased flow of surface water over or onto his property, arising merely from the changes in the character of the surface produced by the opening of streets, building of houses, etc., in the ordinary and regular course of the expansion of the city.”

There is still another aspect in which the sixth assignment of error requires us to consider .the case, even though it be conceded as a fact that less water would have flowed to the plaintiff’s premises if the gutter had not been constructed. As already noticed, the gravamen of the plaintiff’s action was that the defendant’s act was illegal and negligent; therefore, without proof of illegality or negligencé, he could not recover, whatever may have been the liability of the borough in some other form of proceeding. What the defendant did was to construct a paved gutter along a borough street for the purpose of draining the surface water on the street caused by rain or melting snow. There is no ground whatever for saying that in doing this the borough exceeded its power. It was a lawful act, and so far as appears in the evidence, there was no irregularity in the exercise of the power to make the improvement. As was said in Robinson v. Norwood Borough, 215 Pa. 375, we must assume, for nothing is shown in the evidence to the contrary, that the borough entered upon the improvement with due observance of all legal requirements, and that what it did in this connection it had a right to do. We come then to the allegation of negligence. It cannot be said that the gutter was left in an unfinished condition, as is set forth in the statement of claim. True, the gutter ended in the highway at the borough line, but there is nothing to show that this was not precisely what the borough in the exercise of its discretion intended to do, or, to state the proposition in another form, that the improvement authorized by the borough contemplated anything more being vdone than was done. Further, there is no evidence that the actual work was done negligently; that is, that owing to the use of defective materials, faulty construction, or other causes not contemplated by the borough the flow of water was directed in a way not intended. In short, if there was negligence, it was not in the execution of the plan adopted by the borough. This being so the plaintiff is necessarily compelled to take the position (and it would seem from the statement of claim that this is the position taken by him) that the borough is liable because the plan did not include any provision for disposing of the water when it came to the end of the gutter so that it would not flow from the highway onto private property. But assuming that by reason of the omission of the borough to make such provision the plaintiff’s property was injured, was it such an injury as can be redressed in an action of trespass based on an allegation of negligence? We are of opinion that it was not.

The first section of the Act of May 16, 1891, P. L. 75, as amended by the Act of June 12, 1893, P. L. 459, provides that all municipal corporations shall have power, whenever it shall be deemed necessary, inter alia, in the grading of streets, or in .the construction of slopes, embankments and sewers, or in the changing of water courses, to take, use, occupy or injure private lands, property or materials. And the eighth section provides that every, municipal corporation shall have power to lay out, establish or re-establish grades of streets and alleys, and to construct “sewers and drains in any street or alley, or through, or on, or over private property.” The act also provides an elaborate and complete system for the assessment of damages and benefits caused by the making of such improvements. The street improvement in question was made in the exercise of these powers. But it is well settled that for such injury as is the direct, immediate, necessary and unavoidable consequence of the exercise of the power, a proceeding before viewers is the appropriate remedy, but for injury by negligent performance of the work the remedy is by action of trespass: Stork v. Philadelphia, 195 Pa. 101. In applying this rule, another equally important principle is to be kept in mind, namely that-the discretionary power to construct sewers, drains and other improvements, and to select the plan, is vested in the municipal authorities. When it is said that the injury for which damages may be awarded in a proceeding before viewers must be the unavoidable consequence of the act of eminent domain, it is clearly not meant that the claimant may be turned out of court merely because, in the opinion of the viewers, the court or the jury, a different, and in other respects equally good, plan might have been adopted by the municipality, which would have worked no injury to adjoining properties. The question is, was the injury the necessary consequence of the execution of the plan adopted, or was it the consequence of negligence in executing the plan? In the former case the damages may be assessed in that form of proceeding, in the other case not: Chatham Street, 16 Pa. Superior Ct. 103. Since the adoption of the act of 1891 these principles have been quite rigidly adhered to and have been applied in numerous cases and under a variety of circumstances. Amongst the cases where the subject has been fully considered and discussed are Curran v. East Pittsburg Boro., 20 Pa. Superior Ct. 590; Cooper v. Scranton, 21 Pa. Superior Ct. 17; Fyfe v. Turtle Creek Boro., 22 Pa. Superior Ct. 292; Herr v. Altoona, 31 Pa. Superior Ct. 375; Robinson v. Norwood Boro., 27 Pa. Superior Ct. 481; s. c., 215 Pa. 375. See also Power v. Ridgeway Boro., 149 Pa. 317; McKee v. Pittsburg, 7 Pa. Superior Ct. 397; Hoster v. Philadelphia, 12 Pa. Superior Ct. 224. Applying these principles to the facts of the present case we are of opinion that the plaintiff has not established his allegations of illegality and negligence, or either of them, and therefore the' point of the defendant requesting a binding direction ought to have been affirmed.

The judgment is reversed.


text:
    Fee v. Adams Express Company.

      Principal and agent — Express company — Route agent — Evidence.
    1. Where it is sought to hold an express company on a contract made by one of its route agents to pay a sum of money to a constable for securing the arrest of thieves who had stolen packages from the company, it is proper to permit the general agent of the company, who had charge of the route agents and knew the extent of their authority, to testify that the route agent had no authority to make such a contract.
    2. While the fact that a certain act is or is not within the scope of ’the authority of one who, admittedly, is a ministerial agent, cannot be proved by evidence of his declarations to third persons, yet if his authority is orally conferred, he is a competent witness to the fact.
    3. An agent is competent to prove his own authority where it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res geste, if made in the conduct of his business intrusted to him, yet other evidence must first establish his authority to speak before his words shall bind his principal.
    4. In an action against an express company to recover on a contract alleged to have been made by the route agent of the company, to pay the plaintiff, the constable, a stated sum for procuring the arrest of a thief, binding instructions should be given for the defendant, where the plaintiff produces no evidence to show the functions of a route agent, the nature of his duties, the extent of his powers, or that the company had ever held him out as having authority to make such a contract, or that he had ever made similar contracts with the plaintiff, or anyone else.

      5. Where a route agent of an express company is assigned by his employer to investigate a theft, there is not implied in such assignment a power to contract with a constable, who had been designated previously as the commonwealth’s agent in a requisition for a person charged with the theft, to pay such officer a specific sum for apprehending the accused in a distant state. The making of such a contract is beyond the scope, not only of the agent’s actual, but of his apparent authority.
    Argued April 20, 1908.
    Appeal, No. 50, April T., 1908, by defendant, from judgment of C. P. Fayette Co., June T., 1906, No. 422. on verdict for plaintiff in case of Charles M. Fee v. Adams Express Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on an alleged contract of employment. Before Umbel, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial when E. E. Sanford was on the stand, he was asked this question:
    “Q. I will ask you if you have any authority as route agent of the express company to make any such contract as Mr. Fee has testified here was made?”
    Objected to as incompetent.
    Objection sustained. Exception for the defendant. [1]
    C. M. Day was asked this question:
    “Q. I will ask you whether or not route agents in the employ of the Adams Express Company have authority and power to make any such contracts as Mr. Fee has testified that he and Mr. Sanford had?”
    Objected to as incompetent.
    Objection sustained. [2]
    Counsel for defendant move the court to give binding instructions to the jury in favor of the defendant company for two reasons, as follows:
    1. That there can be no recovery on the count alleging a contract, for the reason that there is no testimony that Sanford, the route agent, had authority to make such a contract.
    2. There can be no recovery on the count of a quantum meruit for the reason that there is no testimony as to the value of the services, if any, rendered.
    The Court: Refused; exception for the defendant. [3]
    The court charged the jury in part as follows:
    [There are about only two questions for you to determine; one is whether or not a contract was entered into between the plaintiff and the representative of the defendant company; the other is, if you should determine the first against the plaintiff, what would be reasonable compensation for the plaintiff’s services rendered in connection with the case, regarding which the testimony has been submitted.] [4]
    [If you should find the contention of the plaintiff to be the correct one and that a contract of this character was entered into between him and the representative of the defendant company, the plaintiff admitting that he has already received $275 on account of the $500, if you should find and determine along that fine, then under this contract there would be still due to the plaintiff the sum of $225, with interest from the time when it should have been paid, which the plaintiff claims was September 1, 1905.] [5]
    [If the contention of the plaintiff prevail and there was a contract, then the amount was fixed by the contract and you should render a verdict accordingly.] [6]
    Verdict and judgment for plaintiff for $240.21. Defendant appealed.
    • Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) refusal of binding instructions; (4-6) above instructions, quoting them.

      A. E. Jones, of Jones & Henderson, for appellant.
    An agent cannot act for and bind his principal except within the scope of his authority. The burden of proving the authority of the agent is upon the one seeking to bind the principal: B. & O. Employees’ Relief Assn. v. Post, 122 Pa. 579; Central Penna. Telephone & Supply Co. v. Thompson, 112 Pa. 118; American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46.

      February 26, 1909:
    Mr. Sanford was a competent witness to prove the agency, the scope and extent of his authority.

      Wooda N. Carr, for appellee.
    The principal is, generally speaking, responsible for and bound by those acts of his agent done in the course of the agent’s employment and within the scope of the agent’s authority: Susquehanna Mutual Fire Insurance Co. v. Cusick, 109 Pa. 157; Tanner v. Oil Creek R. R. Co., 53 Pa. 411; Kerns v. Piper, 4 Watts, 222.
    This principle applies to the apparent scope of the agent’s authority: Miller v. Saving Assn., 3 W. N. C. 480; Burton’s Appeal, 93 Pa. 214; Laird v. Campbell, 100 Pa. 159; Griswold v. Gebbie, 126 Pa. 353; Hill v. Nation Trust Co., 108 Pa. 1; American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46.
   Opinion by

Rice, P. J.,

A package of bank bills while in the possession of the defendant company was stolen in Fayette county, and E. E. Sanford, a “route agent” of the company for the district in which it was stolen, was directed to investigate the theft. The plaintiff, a constable of the county, alleges that he was employed by Sanford to assist in the investigation, and that in the course thereof, which extended over several months, he had many interviews and much correspondence with Sanford and other parties. As a result of their investigations, the nature of which need not be detailed, information was received from which it was concluded that James Pope and Thomas Pope were the guilty parties. Warrants were sworn out for their arrest, and Thomas Pope was arrested by the plaintiff in Fayette county under the warrant directed to him as constable, and was lodged in jail. The plaintiff claims from the defendant company $50.00 upon the allegation that before the arrest was made Sanford promised to pay him that sum for making it. He claims further that after Thomas Pope was lodged in jail Sanford promised to pay him $50.00 more if he would obtain a statement from the prisoner, and that acting upon this undertaking of Sanford he succeeded, after many talks with Thomas and making him many promises, in inducing him to make a truthful statement which implicated himself and James Pope as the guilty parties. He testified that still later he ascertained that James Pope was in New Mexico, and that at the request of Sanford, and induced by his promise to furnish him transportation and pay him $400 for the service, in addition to the sum of $100 which the county agreed to pay, he went to New Mexico, arrested Pope and brought him back to Fayette county. In so doing he acted under a requisition issued by the governor of Pennsylvania at the instance of the district attorney in which he was named as agent of the commonwealth. He admits that his fees as constable for the arrest of Thomas Pope were taxed as part of the costs, that he received $100 from the county on account of his services in the extradition of James Pope, that transportation for himself and the prisoner, for substantially all the distance, was furnished by the defendant company, and that through its agents he received $275.

To state the plaintiff’s case in condensed form, as shown by the amendment to his statement of claim and his testimony, the plaintiff based his demand for $500, less the admitted payments amounting to $275, upon an alleged express agreement of Sanford, “route agent aforesaid of the defendant,” to pay him $400 for his services in connection with the arrest and extradition of James Pope, and $100 for his services in arresting and obtaining a statement from Thomas Pope. The defendant defended on two grounds: first, that Sanford made no such promises and entered into no such agreement as the plaintiff testified to; secondly, that he had no authority to bind the company by. such agreement. The question whether the plaintiff could recover under the pleadings, without proof of an express contract for a specific sum, need not be discussed; for there was no evidence from which the jury could determine what amount, if any, beyond the sum paid him his services were reasonably worth. Nor would it be within our province to disturb the finding of the jury upon the question whether Sanford undertook in terms to bind his principal to pay the specific sums mentioned, even though we might be of opinion that as to that matter the evidence preponderated in favor of the defendant’s contention; therefore we shall not discuss the question. So that the case, as it is presented on this appeal, turns on the question of Sanford’s authority. This question was raised by the plea of the general issue, by the denial of his authority in the defendant’s supplemental affidavit of defense, by the objections made at the outset of plaintiff’s examination as a witness, by the defendant’s rejected offers which are set forth in the first and second assignments of error, and by the defendant’s request for binding instruction.

As appears by the second assignment of error, the defendant offered to show by its general agent, who had charge of the route agents of the company, and knew the extent of their authority, that they had no authority to make such contracts. It is true in American Life Insurance and Trust Co. v. Shultz, 82 Pa. 46, the court declined to sustain an assignment of error to the rejection of an offer to prove the authority of the company’s agents generally, but in the present case the offer was much more explicit. The offered evidence would have been well calculated to repel any erroneous inference that the jury might draw from the title of Sanford’s agency, and would have tended to show in corroboration of the offered testimony of Sanford, that, as route agent, he had no authority to make the contract sued upon. The case of Central Pennsylvania Telephone & Supply Co. v. Thompson, 112 Pa. 118, is in point. There the acts and declarations of one Malin, a superintendent of the company’s lines for the central district, were relied on by the plaintiff to fix the responsibility of the company, and the defendant offered to show by the general manager of the company whether Malin “as superintendent of the company’s lines for the central district,” had authority in fact to bind the company by what he said or did in reference to their contracts. With regard to the rejection of this offer the Supreme Court, speaking by Mr. Justice Clark, said: “ It was clear error to exclude this inquiry. It is always competent for a principal to show the scope and extent of his agent’s authority. A superintendent is defined to be one who has the oversight and charge of something, with the power of direction, as the superintendent of an almshouse or of the public works; but a superintendent may have no authority to furnish supplies or purchase materials for the enterprise he directs. What possible objection could there be to showing precisely what his powers were? If he was held out to the world in his general course of business for more extensive powers, the effect of the whole evidence was for the jury. His acts could only bind the company within the scope of his authority, hence proof of his authority was an important and material question.” Upon the same ground, we are of opinion, it would have been competent for the defendant to show by the witness what the powers, duties and authority of a route agent of the defendant company were. If there is any well-grounded objection to the offer, it is that it was too general, not that it was not competent for the defendant to prove the powers, duties and authority of such route agent by a witness qualified and competent to testify upon the subject.

' But assuming that upon the ground of its generality the offer was properly rejected, the same objection does not apply to the offer recited in the first assignment. While the fact that a certain act was or was not within the scope of the authority of one who, admittedly, was a ministerial agent cannot be proved by evidence of his declarations to third persons, yet if his authority was orally conferred he is a competent witness to the fact: 2 Greenleaf on Evid. (16th ed.), sec. 63; Lawall v. Groman, 180 Pa. 532. Hence it was error to reject the defendant’s offer to prove by Sanford that he had no authority as route agent of the company to make such a contract as the plaintiff had testified to.

The third assignment of error is to the refusal of the defendant’s request for binding instructions. The plaintiff adduced no evidence to show the functions of a route agent, the nature of his duties, or the extent of his powers. This was not a matter of which a court can take judicial notice, nor one within the common knowledge of men, and therefore presumably known by the jurors. The following extract from the opinion of our Brother Porter in Beal v. Adams Express Co., 13 Pa. Superior Ct. 143, is directly in point: “The fact that Dauman was a route agent of the defendant company did not give him power to transact business for the company without limitations, and persons dealing with him only had the right to infer that he was authorized to transact the business of a route agent. As to the nature and extent of the duties and authority of a route agent, the plaintiffs offered no evidence whatever, and saw fit to rely upon such inferences as might arise from the character of the office. The office is one with which the public cannot be expected to be familiar, and its title does not imply that the officer would have dealings with the public generally.’ From the title one would infer that the duties of the officer were connected with the department of transportation; that he looked after the condition of the routes already established or the acquisition of new lines. It might be the function of this officer to exercise upon a given route the same authority exercised by a local agent at a fixed point. If so, that would simply refer to the ordinary business of the company, the receiving and delivery of freight. It is clear that nothing more than this can be inferred from the title of the office.” It is plain, therefore, both upon principle and authority, that the fact that the person with whom the plaintiff made this alleged contract was a, route agent of the company raised no presumption of law, and was not ground for an inference of fact, that the making of such a contract was within the scope of the agent’s powers. Nor can such presumption arise or inference be drawn from the mere fact that the agent declared to the plaintiff that he was authorized to make it and conducted himself in their dealings in this single matter as if he had such authority. “An agent is competent to prove his own authority where it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res gestas, if made in the conduct of the business intrusted to him, yet other evidence must first establish his authority to speak before his words shall bind his principal:” Jordan v. Stewart, 23 Pa. 244.

The principle upon which the agency and its scope may be implied or inferred from a course of dealing, might be applicable, if there were any evidence that the route agent had been in the habit, with the knowledge and acquiescence of his principal, of making similar contracts with the plaintiff or other members of the general public. The principle has been thus stated: “The extent of an agent’s powers depends upon the authority under which he acts. This may be shown by his written instructions or his course of dealing. It is true the public are not always bound by the private instructions of the agent; and may hold the principal responsible, though the particular "acts done are in excess of his private instructions. This was asserted in Adams Express Co. v. Schlessinger, 75 Pa. 246. It applies to cases where the agent has been held out to the world as such by the principal, allowed to exercise enlarged powers from time to time, and his acts therein have been ratified by his principal:” American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46. ‘'The evidence of the delegation of authority may be the written instructions of the principal, or parol testimony showing a regular course of dealing with the knowledge of the principal, or that an agent of limited powers has been in the habit of managing the business committed to his care in a manner involving an enlargement of his powers, with the knowledge and acquiescence of his principal. The authority cannot be proven by the declarations of the alleged agent, nor by his acts done without the knowledge or authority of the principal: Hays v. Lynn, 7 Watts, 524; Whiting & Co. v. Lake, 91 Pa. 349; Moore’s Exrs. v. Patterson, 28 Pa. 505; Telephone & Supply Co. v. Thompson, 112 Pa. 118:” Beal v. Adams Express Co., 13 Pa. Superior Ct. 143. As there is no evidence of a single instance in which Sanford was held out by the company as having authority to make contracts of the character described by the plaintiff, or that he ever made similar contracts with the plaintiff, or anyone else, either with or without the knowledge and acquiescence of the company, it is apparent that the doctrine under which an apparent authority may be implied from a holding out, or a course of dealing, would not sustain a verdict in the plaintiff’s favor in this case.

A point is made of the admitted fact that Sanford was assigned to investigate the theft, but we are unable to agree with the appellee’s counsel in their contention that, whether this power was specially conferred or was held by virtue of his position as route agent, there was implied in it the power to contract with an officer, who had been designated previously as the commonwealth’s agent in a requisition for a person charged with the theft, to pay such officer a specific sum for apprehending the accused in a distant state. The making of such a contract was beyond the scope, not only of his actual but of his apparent authority. Therefore the case is not within the doctrine of those cases in which it has been held that a principal is, generally, responsible for, and bound by, those acts of his agent done in the course of the agent’s employment, and within the scope, or apparent scope, of his authority, although there may be as between the principal and agent a restriction upon that authority, or although the specific act for which it is sought to hold the principal liable was not in fact authorized.

It is argued that Sanford’s own testimony established at least his apparent authority, and in support of this claim counsel cite the following extract from his cross-examination: “Do you mean to say that absolutely and positively you had no contract with Mr. Fee? A. I certainly do. Q. You had no contract with him at all? A. No contract whatever. Q. What did you expect to pay him, how much did you figure on paying? A. Just as we stated in our letter, a reasonable amount. Q. What in your idea is a reasonable amount? A. I believe we tendered or offered him $5.00 per day.” This offer was evidently contained in a letter which was not produced, and the nonproduction of which was not accounted for. It does not appear by whom the letter was written, nor whom the witness meant by “ we.” If he meant himself, or himself and the local agent of whom he had previously spoken, the letter does not advance the proof of his authority a single step. The same is true if by “we” he meant the company he represented. We fail to see that this vague and indefinite testimony could properly be construed by the jury as an admission by the defendant’s witness from which they could infer that he had authority to employ the plaintiff and to agree with him as to his compensation.

We will not prolong this opinion by a further recital of small details in the evidence which really throw no light upon the question for decision. A thorough examination of all of the testimony has led us to the conclusion that it is insufficient to support a finding that Sanford had authority to bind the company by a contract such as is described by the plaintiff. Therefore the request for binding instruction should have been affirmed for the reasons stated in the request.

The judgment is reversed.


text:
    Houston v. Budke Stamping Company, Appellant.

      Negligence — Master and servant — Dangerous machine — Knowledge of danger — Notice to employer — Risk of employment.

    1. Where an employee is injured by the sudden irregular -working of a machine, at which he had been employed for four days without knowledge of its defective condition, he may in a suit against his employer show by the testimony of another employee, that the latter had worked at the same machine two months before the accident, that it had acted on several occasions in an erratic and dangerous way, and that he had notified the foreman who had charge of the machinery of the defect.
    2. Where a workman of mature years is placed at a machine, which without his knowledge had worked at times erratically and dangerously, and nothing in his age or experience, nor in the appearance of the machine could lead him to apprehend that the machine would suddenly act in a dangerous way, he cannot be charged with assuming the risk of such action of the machine.
    3. Where a workman was directed to work at a stamping machine, and on the first day of his employment the upper die fell, and the foreman charged that he had tramped the treadle, which he at first denied, but subsequently took it for granted that he had, as the machinist and others insisted that he had, the court cannot say as a matter of law that the workman assumed the risk by continuing at the machine after this single occurrence.
    Argued April 21, 1908.
    Appeal, No. 175, April T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 295, on verdict for plaintiff in case of W. S. Houston v. The Budke Stamping Company.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.

      The circumstances of the accident are stated in the opinion of the Superior Court.
    At the trial plaintiff made the following offer:
    The plaintiff proposed to prove by the witness, Charles McConnell, on the stand, that for a period of about three months prior to the Saturday of the third week of June, 1906, he worked at the same press for the defendant company on which the plaintiff was injured; that during the time that he was working on that press the press made a revolution when it ought not to have done so and without the witness’ foot upon the treadle; that it did this a number of times; that Hugh Clyde, who was the machinist in charge of the machinery in that department, and whose duty it was to see that the machinery was kept in good repair, was notified by the witness of the fact that the press was coming down when it ought not to come down and' when the foot was not on the treadle; this for the purpose of showing that the press was out of order, that the machinist in charge of that department whose duty it was to keep the machinery in order, had knowledge of that fact, and this to be taken in connection with the other testimony in the case, the fact that the plaintiff when he was put to work was given no notice that the machine might come down when the foot was not on the treadle.
    Counsel for defense object to the offer as incompetent, irrelevant and immaterial. And for the further reasons that the offer does not propose to show any defect of the machinery at all, nor does it propose to show that there was any defect in the machine at the time of the accident; it simply proposes to show that two months prior to the accident the press came down, to use the language of the offer, when it ought not to have come down; that the offer to show that it came down when the foot was not on the treadle does not necessarily show any defect in the machine, and this two months prior to the cause of the accident; nor does it offer to show that if there was a defect at that time it was not repaired prior to the accident.
    Mr. Irwin: I wish to add to my offer, and to prove further that the reason why the press came down at these various times, with his foot not on the treadle, was because it was not properly adjusted, the various parts were not properly adjusted and the clutch was not thrown out of place when the press ascended as it should have done, and would have been done if the press had been in proper condition.
    Counsel for defense renew the objection heretofore made to the offer and add in reply to that as a further objection, that this testimony does not show, nor does it propose to show, that there was any defect or cause of break of the machine, that it simply proposes to show that the clutch did not work, but does not propose to show why it did not work, and neither does it propose to show that if it was out of repair at that time it was not in repair at the time of the accident; nor does it propose to show that it was not repaired between the time it came down, or is said to have come down, and the time of the accident. The two months intervening between the time when the press came down without the foot on the treadle, does not establish that it did or would come down this time, and the offer to show that notice of Hugh Clyde, the superintendent, brings the case within that line of authorities which hold that care is to be presumed upon the part of the defendant as well as the plaintiff, and that having notice of that two months before, if it was out of repair, the law presumes that it was repaired before the accident.
    The Court: I know, but Governor Stone, if they show that the superintendent of this machine knew that that machinery was defective then it is a question for the jury whether this case would be tried under the employers' liability act, that was the company; it is a question for the jury to say whether or not the superintendent or the machinist was a vice principal. The evidence in the case so far is that your vice principal or your machinist there, the superintendent, instructed this plaintiff to keep .his hands out from under that plunger that went into the die when he had his foot on the treadle. If that plunger descended when his foot was not on the treadle, then he did not receive adequate instructions as to what that plunger might do when his foot was off the treadle; if they had notice prior to that, it is not a question of how long, if the company had notice through its vice principal or its principal that that plunger descended at other times when the foot was not on the treadle. Therefore, we think this testimony is clearly competent; the other question was withdrawn from us, and we were not permitted to pass on that.
    February 26, 1909:
    Exception noted and bill sealed for defendant. [3]
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant, and (3) ruling on evidence, quoting the bill of exceptions.

      William A. Stone, of Stone & Stone, with him Alex. M. Templeton, for appellant.
    Plaintiff received proper instructions: O’Keefe v. Thorn, 24 W. N. C. 379; Higgins v. Fanning & Co., 195 Pa. 599; Best v. Williamsport Staple Co., 218 Pa. 202; Fletcher v. Traction Co., 190 Pa. 117; Clark v. A. Garrison Foundry Co., 219 Pa. 426.
    We believe that this defendant put his foot upon the treadle, and thus caused his injury, as no other satisfactory explanation of the cause of the accident has been given; and in taking these to be the proper circumstances surrounding the accident, the case will be ruled by that of Eisenberg v. Fraim, 215 Pa. 570.

      R. W. Irwin, with him Jas. A. Wiley and A. T. Morgan, for appellee.
   Opinion by

Rice, P. J.,

The plaintiff while in the service of the defendant operating a finishing machine used in the manufacture of metal drip pans was injured. His allegation of negligence is based on the grounds that the machine was defective, and known to be so by the defendant, that the existence of the dangerous defect was not obvious to him and that he received from the defendant no sufficient instructions. The machine and its mode of operation, when in proper working order, are described in the plaintiff’s statement of claim and the defendant’s bill of particulars substantially as follows: There is a mold in which the pan is set by the workman after it has been shaped by another press, and when the workman puts his foot on a treadle at his side a die that fits the mold is pressed down by the machinery and finishes the pan. The die is then carried up by the machinery to its position, whereupon, we now quote from the pleadings, “if the press was properly constructed and in proper working order, a clutch would be released by a spring and the press would remain stationary until the workman removed that pan, put another drip pan in position, and put his foot upon the treadle, when that clutch would again be thrown back into position and the machinery would carry the press down and back up again.” The plaintiff testified that on the fourth day of his employment, having completed a pan, he took his foot from the treadle, loosened the pan with a file, and then reached in and took hold of a corner of the pan for the purpose of removing it, when the die came down, caught his hand and crushed some of his fingers. Viewing the verdict in the light of the evidence and of the charge of the court we must accept it as an established fact that the plaintiff took his foot from the treadle when the pan was finished and the die sprung up, and kept it off the treadle while he was attempting to remove the pan. This being so, and there being no evidence of outside interference, and it being a conceded fact that if the machine was properly constructed and in proper working order the upper die would have remained stationary until the workman again put his foot on the treadle, the natural inference is that it was not properly constructed or was not in proper working order. This conclusion does not rest on mere inference from what happened at the time of the accident. Charles McConnell worked upon the machine until within about two months prior to the employment of the plaintiff. He testified that during the two or three months he operated the machine the upper die came down when he had his foot off the treadle; that he called this to the attention of the foreman who had charge of the machinery in that department and whose duty it was to see that it was in good repair; that thereupon the foreman adjusted the machine by tightening it or loosening it as the occasion required, after which it ran regularly for a time; that then the upper die fell again without his foot being on the treadle, and again the same process of adjustment was gone through; and that this occurred at irregular intervals three or four different times. We quote a small excerpt from his testimony: “A. Well, it came on me three or four different times, maybe oftener, but I am positive of that often. Q. And are you or are you not able to say positively that your foot was not on the treadle at these various times? A. I am.” The entire testimony of this witness was competent, because it tended to show (1) that owing to defective construction of this particular machine, not to a quality necessarily inherent in that kind of a machine, it was accustomed to work at times in the same irregular manner as on the day of the accident; and (2) that the defendant had notice of this by reason of the knowledge of the person to whom it had delegated charge of the machinery of that department, and the power and duty of keeping it in proper repair. This kind of evidence was held competent, and sufficient to warrant the submission to the jury of the question of the existence of a dangerous defect in the machine and of the employer’s knowledge of it in Sopherstein v. Bertels, 178 Pa. 401, and Valentine v. Colburn Co., 10 Pa. Superior Ct. 453, cases very closely resembling the present; and it involves no straining of the cases of Patterson v. Harrisburg Trust Co., 211 Pa. 173, and Gerding v. Standard Pressed Steel Co., 220 Pa. 229, beyond the points actually decided in them, to say that they support the conclusion above stated.

The next question to be considered is whether the court would have been warranted in charging the jury that under the evidence the rule as to assumption of risk applied and barred recovery by the plaintiff. No well-considered statement of that rule goes farther than to declare that by contracting for the performance of hazardous duties the employee assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to observe. It was by the application of this principle to the facts of the cases cited in the appellant’s brief that the decisions were reached. The question we have to determine is whether it was the province of the court to instruct the jury that under the evidence in this case the principle must necessarily conclude the plaintiff. The plaintiff was forty-five years of age and had worked for a number of years as an oil pumper around steam engines, gas engines and machinery of that kind used at oil wells. To a man of his age and experience the danger of putting his hand in to remove the pan while he had his foot on the treadle must have been obvious after he had worked at the machine three days, even if it was not at the beginning. But neither his age nor his experience nor both combined would cause him to apprehend that the machine worked erratically and that at times, unexpectedly and without warning, the upper die would come down after he had taken his foot from the treadle and was removing the pan from the mold in the usual way. On the contrary, the jury might well find that the very instructions his testimony shows he received at the beginning of his work would naturally lead a reasonably prudent man to believe that there was no such dangerous latent defect in the machine which he must guard himself against.

Being asked what instructions he received from the foreman of the gang at the time he was put to work, he testified: “Nothing more than he took a couple or three pans, put it through the press and says, 'that is what I want you to do; the press will work when you tramp the treadle but it won’t without, and when you tramp the treadle,’ he says, 'don’t put your fingers under there;’ that is all the instructions he gave me.” The foreman’s testimony was to the effect that he ran a few pans through the machine to show the plaintiff how it worked and warned him to keep his mind on his work and not to put his foot on the treadle when his fingers were under the press. Whether the plaintiff’s version or that of the foreman be adopted as the correct one, it is apparent that the plaintiff was not warned of the dangerous latent defect, that, according to the verdict of the jury, was the efficient cause of the plaintiff’s injury.

In Patterson v. Harrisburg Trust Co., 211 Pa. 173, Mr. Justice Fell, speaking of a machine which apparently started automatically and injured the plaintiff who was a workman, said: “What caused the automatic starting of the machine was not shown further than that it was probably due to the variation of air pressure on the valves. It was shown that the self-action was not due to a condition brought about by wear and tear, but that it was an inherent tendency, resulting from the machine’s construction. The danger, then, to which the plaintiff was exposed was not one ordinarily incident to his employment nor obvious to him. No one would anticipate the sudden starting in motion of such a machine because of some peculiarity of its construction. When it was at rest and no one was near it to start it by accident or design, it was apparently as harmless as any other inanimate and quiescent object, and the plaintiff might assume he was safe in standing close to it where his work required him to be. The danger was a hidden one, of the existence of which it might be inferred that his employer knew or should have known. Against such a danger there was a duty to warn him.” These remarks are plainly applicable to the present case if the testimony adduced by the plaintiff be believed, unless as is claimed the plaintiff received warning otherwise. This is the last suggestion in the argument of appellant’s counsel that need be discussed.

The argument is that the plaintiff cannot set up the insufficiency of the instructions as ground of recovery, because the first day of his employment he learned of the danger from his own experience and continued at work. This contention is based on the following extract from the plaintiff’s testimony: “Q. Now, did it come down on you before? A. Yes, sir, the first day I worked there about two hours after I went to work the machine came down while I was taking the pan out, I spoiled the pan; the machinist was standing directly behind me and he came over and fixed it and fixed it up, and he says ‘you tramped the treadle,’ well, I didn’t — I never had worked the machine around enough and long enough to know whether I had tramped the treadle or not, but I took it for granted that I did when they said that the machine was perfectly safe until the treadle was tramped and I went — Q. At that time had you any knowledge of having tramped the treadle as he stated you had? A. No, sir, I didn’t. I didn’t think I did. Q. Can you state whether you did or not? A. Well, I would say I didn’t, but they impressed on me that I had; I hadn’t worked the machine long enough to argue the case with them and I took it for granted that I had; that was the first day I worked the machine.” If, as a jury might well find, he yielded his belief in deference to what he considered to be the better judgment of his superior, and relying on the positive assurance at the time he went to work that the press would not work except when he tramped the treadle, it cannot be declared as matter of law that he assumed the risk by continuing at work after this single occurrence. As was said by our Brother Porter in Valentine v. Colburn Co., 10 Pa. Superior Ct. 453, “It would have been error for the court to hold that it was negligence in plaintiff not to guard against that which defendants had led him to believe was a mechanical impossibility.”

After a review of the whole case we conclude that it was clearly one for the jury and that it was submitted in a manner that carefully guarded the defendant’s rights.

All the assignments of error are overruled and the judgment is affirmed.