author: Oblady, J.,

text:
    Scott v. Central Valley Railroad Company, Appellant.

      Railroads — Eminent domain — Condemnation proceedings — Bond—Incorporation of company — Evidence—Experts.
    Where a railroad company has filed a bond to secure the payment of damages for land condemned, and the bond has been approved by the court, title to the easement passes to the railroad company, and the landowner’s remedy is upon the bond in connection with the statutory provisions for assessment and collection of damages.
    Witnesses called in condemnation proceedings are competent to express an opinion upon values, where it appears that they resided in the immediate neighborhood, had been well acquainted with the property prior and subsequent to the entry of the railroad, knew its surroundings and the improvements on it, knew the general value of lands in the immediate vicinity of like character, and of such sales as had been made, together with the general asking value of similar property in that neighborhood.
    Argued Feb. 25, 1907.
    Appeal, No. 14, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., J une T., 1902, No. 99, on verdict for plaintiff in case of Bridget Scott V. Central Valley Railroad Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Wheaton, J.
    The facts are stated in the opinion of the Superior Court.

      Frrors assigned were (1, 2) in admitting the testimony of M. J. Tigue and W. J. Devanney; (3) in refusing binding instructions for defendant.

      Oormae Francis Bohan, with him John T. Lenahan, for appellant.
    — The witness was incompetent: Hope v. R. R. Co., 211 Pa. 401; Dawson v. Pittsburg, 159 Pa. 317; Gallagher v. Kemmerer, 144 Pa. 509; Shimer v. Easton Ry. Co., 205 Pa. 648; Friday v. Penna. Railroad Co., 204 Pa. 405 ; Michael v. Crescent Pipe Line Co., 159 Pa. 99; Pittsburg, etc., Railway Co. v. Vance, 115 Pa. 325.

      W. L. Face, with him M. N. Donnelly, for appellee,
    cited: Hope v. R. R. Co., 211 Pa. 401; Jones v. R. R. Co., 151 Pa. 30; Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426; McElheny v. McKeesport, etc., Bridge Co., 153 Pa. 108; Curtin v. Nittany Valley R. R. Co., 135 Pa. 20; Mewes v. Crescent Pipe Line Co., 170 Pa. 364 ; Michael v. Crescent Pipe Line Co., 159 Pa. 99 ; Pennock v. Crescent Pipe Line Co., 170 Pa. 372; Leiby v. Clear Spring Water Co., 205 Pa. 634; Smith v. R. R. Co., 205 Pa. 645 ; Hope v. Phila., etc., R. R. Co., 211 Pa. 401; Hewitt v. R. R. Co., 19 Pa. Superior Ct. 304.
    April 15, 1907 :
   Opinion by

Oblady, J.,

The defendant company made a location for a railroad through the plaintiff’s land, pursuant to its charter rights, and by its representatives endeavored to .secure a right of way from her; failing in this a bond was tendered which the plaintiff refused to accept, and on May 19,(1902, the bond was filed in the court of common pleas of Luzerne county, with surety in the usual form, under the provisions of the act of the general assembly in such case made and provided. After full consideration of the case by the court (the right of the company to enter upon the land under its right of eminent domain not being questioned), the bond was approved, when the defendant company entered into possession of the premises described in the bond and map attached thereto. The security being given in due course of law the grasp of the owner upon his property is loosed by the constitution itself, and, consequently, the easement acquired passes freed from his power to obtain payment otherwise than upon the bond, and the proceeding by assessment of damages given by law : Semple v. R. R. Co., 172 Pa. 369. When a sufficient bond with sureties approved by the court has been given, the company acquired as clear and perfect right to the easement as if it had paid therefor in cash. The landowner’s remedy is upon the bond in connection with the statutory provisions for assessment and collection of damages : Fischer v. R. R. Co., 175 Pa. 554; Katharine Water Co., 32 Pa. Superior Ct. 94; Com. v. Shaffer, 32 Pa. Superior Ct. 375. The incorporation of the company, and its power to assert the right of eminent domain as against the land of the plaintiff described in its bond and map, were adjudicated by the approval of the bond, and on the trial of the issue in the court it was not necessary to affirmatively prove the defendant’s incorporation, inasmuch as under the rules of court of that county it is provided, that in all actions by or against corporations it shall not be necessary on the trial to prove the incorporation, but the same shall be taken to be admitted as alleged on the record, unless one or more of the defendants shall by affidavit, filed at or before plea, deny the existence of the incorporation as alleged, etc.; that was not done, and the trial proceeded in due order.

The first and second assignments of error are earnestly urged upon our attention, as it is insisted that the two witnesses, Tigue and Devanney, did not show sufficient^ knowledge of the subject-matter of the inquiry to qualify them to give an opinion of the value of the property in question. After the jury had been sworn they were sent by the court to view the premises, so as better to understand the testimony adduced on the trial. The question of the competency of such witnesses is always for the court, as a matter of law, and in this case they were examined and cross-examined at great length, and were held to be possessed of sufficient knowledge to allow them

to express their opinion of the Aralue of the property: Friday v. Penna. R. R. Co., 204 Pa. 405. This whole question has been so fully considered by the Supreme Court in Hope v. Philadelphia & Western R. R. Co., 211 Pa. 401, that nothing would be gained by a repetition of what is there said, or of the authorities there collated. In Lally v. Central Valley R. R. Co., 215 Pa. 436, it was said, the market value of land, even in cities, is not capable of exact proof like that of stock, or the staple commodities of trade, such as flour, sugar or pig iron. At best it is a matter of opinion, not strictly of experts, but of those who are shown to be familiar with the neighborhood, the situation and availability of the particular tract, the buying and selling value as shown by such sales or transactions as have occurred under circumstances to make them fair bases for inference as to the particular matter in issue. In neighborhoods where sales are few and at long intervals, it would be unfair and impracticable to require as full and detailed knowl-' edge on the part of witnesses as in other localities where sales are frequent and of public interest and attention. Opinion of any kind is a poor quality of evidence, and where admissible at all it is only so because it is the best that is available. In all questions of competency on' that subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case. In Galbraith v. Philadelphia Go., 5 Pa. Superior Ct. 178, Judge Wickham for this court said: “ It would be unfair to the court below and to the. plaintiff to reverse merely on an inference that these witnesses perhaps may have been devoid of some knowledge of details which, looking at their answers to the questions asked arid their environments, they could not be reasonably supposed to lack. As to their knowledge of values, the fact that it was derived from hearsay does not render it unavailable for or against either party to the suit. A moment’s reflection will show that most of the knowledge any of us have, or can have, on this subject comes from the same source. Buyers and sellers do not usually call in outsiders to aid them in their bargaining. Sales of lands, as well as prices asked and received, are generally made known to those not directly interested by the common talk of the neighborhood, in the same way that the reputations of men are established.”

Both of these witnesses resided in.the immediate neighborhood, had been well acquainted with the property prior and subsequent to the entry of the railroad, knew its surroundings and the improvements on it, knew the general value of lands in the immediate vicinity of like character, and of such sales as had been made, together with the general asking value of similar property in that neighborhood. They knew as much as anyone could in fact know of the market value of this land, were able to fix definite values on the property before and after the taking. The view of the jury of the premises enabled them to give due weight to their testimony. The question of values and the measure of damages were submitted to the jury with great care by the trial judge, and we find no merit in any of the assignments of error.

The judgment is affirmed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Kline v. Saint Mary of Czestochow Polish National Catholic Church, Appellant.

      Judgment — Opening judgment — Corporation—Religious congregation.

    A judgment entered against an inoorporated religious congregation will not be opened where it appears that the note on which the judgment was entered was signed by the president and secretary of the corporation who had full authority to execute the note, and that the nqfce was given for a valid consideration, and that the debt which it represented was due and unpaid.
    Argued Feb. 27, 1907.
    Appeal, No. 53, Jan. T., 1907, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 167, discharging rule to open judgment in case of Daniel Kline v. Saint Mary of -Czestochow Polish National-Catholic Church of Plymouth.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beayer, JJ.
    Affirmed.
    Rule to open judgment.
    Ferris, J., filed the following opinion :
    The petition, answer and depositions present two questions for decision. 1. Were John Strojny, president, and Antoni Mazur, secretary, of the church committee on June 18, 1906, being the time they executed the note in question, and had they authority to sign the note? 2. Does the note represent a lawful, valid debt of the church ?
    If it appears, by the weight of the testimony, that Strojny and Mazur were such officers, duly authorized to so act at the time, and that there was a valid consideration, the judgment should stand.
    By opinion filed March 15, 1906, dissolving the injunction, Judge Wheaton decided that St. Mary’s Czestochow Polish National Catholic Church, John Strojny, Floryan Bieloglowicz, Anthony Mazur, John Mazur and Anthony Szerejko, officers ■ and members of said church, were in possession of the church property and the office of president on December 18, 1905.
    The weight of the testimony in the cause shows that there was a meeting of the congregation the evening of January 14, 1906, at which trustees were elected; Strojny was president, and Mazur secretary of the board of trustees, and that at the time the note was signed Strojny and Mazur had full authority to-execute the note.
    As to the indebtedness.
    St. Mary’s Church, with others, was defendant in a bill in equity in this court, and retained as counsel Messrs. Martin, Trescott and Butler to defend the cause. Being sucessful they charged for their professional services the sum of $800. Rev. Davidowsld was at the time of the litigation pastor of said church. There is due him, balance of unpaid salary, $440, and $65.00 expended for the church. The defendant church owed Mr. and Mrs. Strojny $235, making in all $1,540. This is the indebtedness for which Strojny and Mazur gave the judgment note in question.
    It also appears by the depositions that the petitioner in this case is not a creditor of norlegally interested in the property or control of the church.
    The note contains a commission of ten per cent, to be added for collection.' We think, in the circumstances here shown, that five per cent, is sufficient.
    We are convinced that the note in question was given for a valid consideration by persons who had lawful authority to execute and deliver it.
    In the above-mentioned case in Equity No. 5, February Term, 1906, the plaintiffs averred that Strojny and Mazur were members and officers of that congregation. The attempt on the part of the petitioner to show the trustees first elected held office for life, and that a distinction between trustees and committee existed and was recognized by the congregation, has no foundation in fact.
    The congregation, who it is shown has been in financial and other trouble since its organization in 1898, is divided into bitter factions, and have been and are fighting each other, dismissed the pastor, refused to recognize the authority of the alleged bishop, and now one faction attempts to repudiate the services of counsel rendered on behalf of the church.
    The rule to open the judgment is discharged.

      Error assigned was the order of the court.

      May 13, 1907:

      John U. Williams and G. J. Clark, for appellants.

      Edmund G. Butler, with him Rush Trescott, for appellee.
   Opinion by

Orlady, J.,

The defendant church was incorporated by the court of common pleas of Luzerne county, and was the owner of considerable church property in Plymouth in that county. Fór some years the congregation has been divided into bitter factions, contending with each other as to their ecclesiastic and legal rights. The note on which this judgment was entered is dated June 18, 1906,- signed by the corporation with its seal, by president, “ John Strojny, Prezyd.” and “ Antoni Mazue, Secretary ” with their respective seals, on which a judgment was regularly entered on the day following. The petition to open the same was presented by Frank Zjardowski, and after a full hearing on the rule granted to show cause, the court discharged the said rule, whereupon the petitioner and one Florian JBieloglovicz excepted thereto. Neither one of these exceptants is shown to be a party to the record; the appeal is taken by them, and the corporation as such is not participating in the appeal. The whole proceeding is so irregular that the appeal might well be quashed without giving further reasons therefor, but in the light of the full, careful and satisfactory opinion filed_ by the court below in discharging the rule we prefer to affirm the judgment. After the taking of testimony, when all parties had an opportunity of presenting their different contentions, it conclusively appeared that the president and secretary of the board of trustees, who in some instances are called committeemen and in others trustees, were the regularly elected and act-i ing officers of the corporation, and had full authority to bind it by giving this note which was for a valid consideration, as representing honest debts of the corporation, and which were then due and unpaid. The order of the court in refusing to open the judgment was fully warranted by the testimony taken in the case.

We are also requested to impose the penalty provided by the Act of May 19, 1897, P. L. 67, viz.: “ In all cases where the appellate court shall be of the opinion that the appeal was sued out merely for delay, it shall award as further costs an additional attorney fee of $25.00, and damages at the rate of six per centum per annum in addition to legal interest.” While this appeal is unquestionably a vexatious one, we feel that it was not taken for the mere purpose of delay owing to the contention of these litigants in regard to what they believed to be their interest in their church property, and we decline to make the order as requested of us.

The assignments of error are overruled, and the judgment is affirmed.


text:
    Eagle Hose Company, Appellant, v. Electric Light Company.

      Negligence — Electric light company — Horse—Proximate and remote cause — Nonsuit.
    An electric light company which maintains its wires in a public highway is bound to adopt the best precautions against danger, in general use, which experience has shown to be effectual, and to avail themselves of every such known safeguard, or generally approved invention, so as to lessen the danger to persons lawfully using the highway.
    In an action by a fire engine company against an electric light company to recover damages for the killing of a horse, the case is for the jury where it appears that the defendant maintained an arc lamp on a pole about forty feet distant from a .place where a fire broke out, to which the plaintiff was driving its engine; that the arc lamp was suspended on an arm to which it was attached by a rope; that the fire reached the rope, burnt through it; and that the arc light fell in such a way that one of the horses attached to the engine stepped on a live wire and was lulled.
    Negligence may be the proximate cause of an injury of which it is not -the sole or immediate cause. If the defendant's negligence concurred with some other event other than the plaintiff’s fault, to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are so closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time.
    Argued Feb. 28, 1907.
    Appeal, No. 21, Jan. T., 1907, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1904, No. 414, refusing to take off nonsuit in case of Eagle Hose Company No. 1 of Priceburg v. Priceburg Electric Light Company.
    Before Rice, P. J., Porter, Henderson, Or-lady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of a horse. Before Newcomb,'!.
    The fact are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Alton A. Vosburg, with him Charles W. Dawson, for appellant.
    — The defective wire was the proximate cause of the injury: Ewing v. Versailles Twp., 146 Pa. 309 ; Bitting v. Maxatawny Twp., 177 Pa. 213; Laidlaw v. Sage, 158 N. Y. 73 (52 N. E. Repr. 679) ; Sturgis v. Kountz, 165 Pa. 358; R. R. Co. v. Kerr, 62 Pa. 353.
    It is not necessary, even if the fire be considered the proximate cause of the injury, that the fire itself be such an occurrence as should have been reasonably apprehended by the. defendant company: Huber v. Railway Co., 92 Wis. 636 (66 N. W. Repr. 708) ; Bitting v. Maxatawny Township, 177 Pa. 213; Davis v. Ry. Co., 33 L. R. A. 654; R. R. Co. v. Eaton, 94 Ind. 474.
    Where an injury is the combined result of the negligence of the defendant, and an accident for which neither the plaintiff nor defendant is responsible, the defendant must pay the damages, unless the injury would have happened if he had not been negligent: Palmer v. Andover, 56 Mass. 600; Lower Macungie Township v. Merkhoffer, 71 Pa. 276; Hey v. Philadelphia, 81 Pa. 44.
    It wa$ a question for the jury whether or not the safety clutches were so generally in use that it was the duty of the company to provide them, and that a failure to so provide these safety appliances was negligence on the part of the appellee; and whether or not the appliance used was reasonably safe: Titus v. R. R. Co., 136 Pa. 618 ; McCombs v. Ry. Co., 130 Pa. 182 ; Strawbridge v. Bradford, 128 Pa. 200; Henderson v. Ry. Co., 144 Pa. 461; Bishop v. Ry. Co., 48 Minn. 26 (50 N. W. Repr. 927) ; Mock v. Traction Co., 73 Pac. Repr. 455.
    We also contend that companies using electricity are held to a higher degree of care in the use of this highly dangerous agent, than those who use ordinary machinery : Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540 : Electric Co. v. Simpson, 31 L. R. A. 566; Dillon v. Light Company, 179 Pa. 482; Turton v. Electric Co., 185 Pa. 406 ; Will v. Light Co., 19 Lane. 337; Miller v. Electric Light, etc., Co., 212 Pa. 593; Kyle y. Light & Power Co., 174 Pa. 570.
    May 13, 1907:

      R. L. Levy, with him F. M. Lynch, for appellee.-
    In determining what is termed proximate cause the' true rule is that the injury must he the natural and probably consequence of the negligence. Such a consequence, as under the surrounding circumstances of the case, might or ought to have been foreseen by the wrongdoer as clearly to flow from his act: Hoag v. Railroad Co., 85 Pa. 293 : Pass. Ry. v. Trich, 117 Pa. 390; Sturgis v. Kountz, 165 Pa. 358; Marsh v. Giles, 211 Pa. 17.
   Opinion by

Orlady, J.,

On March 6, 1903, in response to a fire alarm signal given through the defendant company’s plant, the plaintiff responded to the call by taking a number of its members on its hose truck, drawn-by two horses, to a three-story frame hotel building then on fire in the near vicinity. On their arrival they passed along the public street under an electric arc lamp, which was then hanging in its place suspended on a mast or arm nine feet long and attached to a pole, placed on the opposite side of the street and forty feet distant from the building on fire. After passing a short distance under the light, the driver was directed to return to the other side of the light to enable the firemen to properly discharge their duties, and, as stated by the driver of the wagon, “ As soon as I turned around to come back the lamp fell,” and by other witnesses it was shown that when he was within fifteen feet of the lamp it fell to the ground. The heat from the burning building was so intense that it burned the rope which held the arc lamp in place at the end of the arm, and severely scorched the pole. The arm on which the arc lamp was suspended remained in place. The driver did not notice the fall of the arc light, and in his effort to get the team in a proper position one of the horses stepped on a live wire attached to the arc lamp and was instantly killed. This action was brought to recover damages for-the loss of the horse, the negligence alleged being that the defendant company improperly and unsafely secured the arc lamp to the arm, it being suspended by a hemp rope, and not supported by clutches or any other safe or proper appliance. At the end of the trial the court granted a nonsuit upon the ground that the proximate cause of the injury was the burning of the rope, due to a casualty which the defendant was not reasonably bound to foresee, and that the evidence failed to disclose either that the use of the clutch described was anything more than experimental in that locality at the time in question.

Under the evidence it appears that the arc light was suspended in its place by the rope which passed over a pulley on the pole, and was made fast to the pole at a cleat, so that the lamp could be lowered or raised for purposes of keeping it in repair and effectiveness, by an operator on the street, and was held in place in no other way than by making it fast at the cleat on the pole. The plaintiff called two witnesses who were admittedly experts in their line, and of considerable experience in their business, who described the character and purpose of the appliance called a clutch, and that its use prevented the fall of the light if the rope would be cut or broken, so that the lamp would be kept hanging in place at the end of the arm. Mr. Parrish testified that such clutches were a customary apparatus in the use of street lamps, and had been in general use since 1889, and that the support by a hemp rope with a pulley, without a clutch or device, was not a safe appliance, and that with the clutch in use and with the rope broken or burnt, the lamp could not fall. George Jay, who had had eleven years' experience in electric street lighting, testified in substance the same, and neither would consider a lamp safe without a clutch or other safety device of similar character, and that such precautionary measures were in use in the city of Scranton, in Dunmore, Taylor, Rendham, Pittston and other places in the immediate neighborhood of Prieeburg. It was urged that these witnesses referred to the use of the device as experimental only, but their testimony is not necessarily limited to that construction, and it could reasonably be inferred from the testimony of both that they were recognized as wise and necessary precautions to prevent the fall of the lamp, either from malicious interference with or accidental breaking of the ropes, for the reason that the fall of the lamp would result in the breaking down of the wires charged with a high current of dangerous power.

It was further contended that the company should not be held liable because of the fire over which they had no control, and which they could not reasonably anticipate. True it is that the pole was forty feet distant from the burned building and placed on the opposite side of the street, and, without the fire, the lamp would not likely have fallen at that time, but it is also true, or could at least be so found by the jury from the evidence, that had the clutch appliances been in use the arc lamp would not have fallen, for the reason that the arm attached to the pole remained in place. The authorities controlling this question are quite clear. In Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, it was stated: “ The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to everyone who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise in contact with them.” And in Heh v. Consolidated Gas Co., 201 Pa. 443, it was stated, citing with approval what was s'aid in Koelsch v. Philadelphia Co., 152 Pa. 355 : “ While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken.” See also Aument v. Pennsylvania Telephone Co., 28 Pa. Superior Ct. '610. And in Daltry v. Electric Light, etc., Co., 208 Pa. 403, the Supreme Court say: “ Electricity when of sufficient voltage for lighting purposes is well known by electricians and others familiar with its properties to be most dangerous, and likely to cause death to those who come in contact with its current. Those who deal with it or supply it to the public are, therefore, required to recognize this fact and to exercise every care commensurate with the danger. A party responsible for an injury by reason of a failure to observe such care is guilty of negligence.” It was clearly the duty of the defendant company to adopt the best precautions against danger in general use, and which experience has shown to be effectual, and to avail themselves of evei-y such known safeguard or generally-approved invention, so as to lessen the danger to persons lawfully using the highways. This is the unquestioned rule governing electric light companies. As to whether the negligence of this company was of such a character as to make it liable depends in a large measure on the discharge of that duty, by the defendant company in properly safeguarding the arc lamp in its place on the mast or arm. The fire may be conceded to be an independent agency over which the company had no control, and that without its effect the lamp would not have fallen. The test of proximate cause established by Pennsylvania R. R. Co. v. Hope, 80 Pa. 873, is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequences of the primary cause, the negligence of the defendant: Shaughnessy v. Pittsburg, 20 Pa. Superior Ct. 609. But negligence may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event other than the plaintiff’s fault, to produce the plaintiff’s injury so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are so closely connected that the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time: Burrell Township v. Uncapher, 117 Pa. 353; Plymouth Township v. Graver; 125 Pa. 24. While the burning building may be treated as an inevitable accident so far as the defendant company is concerned, in that they were not in any manner identified with the cause of the fire and had no control over it, it may at least be treated as an intervening agency which brought into dangerous prominence that which a jury might find was a negligent act of the defendant, and so combined with it as to cause the plaintiff’s damage. If this should be so determined against the defendant company it will be sufficient ground on which to base a verdict in the plaintiff’s favor: Railroad Co. v. School District, 96 Pa. 65 ; Helbling v. Cemetery Co., 201 Pa. 171; Siegfried v. South Bethlehem Borough, 27 Pa. Superior Ct. 456. The precautions which were reasonably necessary to protect the arc lamp in its place, and whether the company failed to adopt an appliance which was recognized as safer than the one he had had in use, and was well known to be of such a character, and in general use in the community prior to the happening of this accident, was a question for the jury. Whether the use of such appliances was purely experimental, and was not recognized as an accepted precaution and safety appliance, was for the jury as well. Under the facts in the case it was error to enter a nonsuit. The case should have been submitted to the jury under proper instructions.

The judgment is reversed and a venire facias de novo awarded.


author: Per Curiam,

text:
    Grim’s Estate.
    May 13, 1907:

      Appeals — Order of sale — Interlocutory decree — Quashing appeal.

    An order, by the orphans’ court directing the sale of the estate of a decedent is not a final decree from which an appeal lies.
    Submitted March 12, 1907.
    Appeal, No. 18, March T., 1907, by Amos Grim, from decree of O. C. York Co., discharging rule to show canse why an order of sale should not be set ■'aside in Estate of Flora Grim, deceased.
    Before Rige, P. J., Porter, Henderson, Morrison, 0ready, Head and Beater, JJ.
    Appeal quashed.
    Rule to set aside order of sale.

      Error assigned was the decree of the court.

      E. D. Eentzel, for appellant.

      E. W. Sprague, for appellee, filed no printed brief.
   Per Curiam,

Flora Grim, who died testate on October 20, 1901, devised and bequeathed all her real and personal estate to her husband, Amos Grim,’ “ as long as he lives or remains unmarried,” and, in' case of his death or remarriage, to her children in equal shares. On June 15„ 1905, Amos Grim was remarried, and on July 16, 1906, upon the petition of the guardian of the children of the testatrix, the orphans’ court ordered a sale of the real estate. The petition set forth, inter alia, that by reason of the remarriage of Amos Grim “ all his interest in the personal and real estate of the said testatrix ceased and the same became vested in said minors absolutely and in fee.” Annexed to the petition was a written request signed by Amos Grim that the decree of sale be made as prayed for. On July 30 following he filed a paper refusing to accept the provisions of the will and electing to talce his interest in the estate, real and personal, under the intestate laws, and, on August 6 of the same year, the court, upon his petition, granted a rule to show cause why the decree for sale should not be opened and set aside and all proceedings thereunder stayed. The guardian of the minors filed a responsive answer, and after hearing upon depositions the court discharged the rule. Amos Grim then took this appeal. In the opinion filed by the learned judge below the law relative to an election in pais to take under a will m preference to the person’s right under the law, is clearly and correctly stated, and we are unable to say that his conclusion from the special facts of the case recited in .his opinion that there was such election was not warranted. , The case is plainly distinguishable in controlling facts from Davis v. Fenner, 30 Pa. Superior Ct. 389, upon which the appellant’s counsel relies. But the question whether an appeal lies from such an order is one which we cannot ignore without establishing a precedent likely to make trouble in the future. “ A person aggrieved by a definitive sentence or a decree of the orphans’ court may appeal from the same,” is the language of the statute upon which the question of the right of appeal and our jurisdiction in the present case depends. Whatever doubt may have existed under some of the earlier decisions upon the question, it is now definitely settled that an order of sale, like the present, is not a definitive decree, and that an independent appeal does not lie therefrom : Snodgrass’s Appeal, 96 Pa. 420. See also Titusville Oil Exchange’s .Dissolution, 10 Pa. Superior Ct. 496, where the subject is fulty discussed, and In re Garvey’s Lunacy, 13 Pa. Superior Ct. 277, and cases cited.

The appeal is quashed at the costs of the appellant.


author: Opinion by Oblady, J.,

text:
    Miller v. Wise, Appellant.

      Evidence — Parol evidence — Written agreement.

    Parol evidence is admissible of a contemporaneous oral agreement which induced the execution of a written contract though it may vary, change or reform the instrument; but such oral agreement must be shown by evidence that is clear, precise and indubitable. It is error for the court to instruct the jury that they may determine it by the weight of the evidence, or that they may determine it by the party's own testimony and corroborating circumstances.
    Argued March 13, 1907.
    Appeal, No. 20, March T., 1907, by defendants, from judgment of C. P. York Co., on verdict for plaintiff in case of Lewis R. Miller v. Clara Agnus Wise and John Wise.
    Before Rice, P. J.,'Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for the unlawful taking- of cattle.
    At the trial it appeared that plaintiff was a tenant of the defendants. Plaintiff claimed that when he went into the possession of the leased premises he took the cattle in question with him, and that when he quit possession he took the cattle with him, and that the defendants unlawfully seized and sold them. A lease designated as paper No. 2 was offered in evidence. The paper contained a clause leasing to plaintiff the cattle in question.
    Plaintiff made the following offer:
    Mr. Rouse: We propose to .prove by the plaintiff that at the time paper No. 2 was signed, to wit: February 23, 1905, in the office of John W. Heller, that Wise stipulated with Lewis R. Miller that the milk that Wise was to receive from the caltle was to be applied in payment of them as theretofore; that that paper, No. 2, was entered ipto at that time solely for the purpose of protecting John Wise and Clara AgnuS Wise from the creditors of Lewis Miller; that on the strength of that understanding and agreement Lewis Miller signed that paper No. 2.
    To be followed by evidence that a similar statement by Mr. Wise was made at the time paper No. 2 was' to take effect.

      For the purpose of corroborating the plaintiff, and for the purpose of showing title to the cows in question in the plaintiff.
    Mr. Wiest: Objected to as improper and irrelevant. It is an attempt to change and modify a written agreement under seal by oral testimony, and is inadmissible.
    The Court: You haven’t offered to prove and say that if representations had not been made he would not have signed that agreement.
    Mr. Rouse: That is in the offer. I will add, that without the representations made by Wise concerning the taking of the milk in payment of the cattle said paper No. 2 would not have been signed by Miller.
    Mr. Wiest: Still objected to as improper to attempt to change and modify a written agreement, and further, the evidence offered does not tend to show title in the plaintiff.
    The Court: We cannot modify that agreement or change it, by his own individual—
    Mr. Rouse: No ; it is to"be followed with other testimony.
    The Court: We take it the offer means what it says. We will admit the offer for the purpose of showing that there was a contemporaneous verbal agreement. Exception for the defendant. [1]
    Plaintiff offers in evidence exhibit No. 25, being the statement furnished by John Wise to L. R. Miller purporting to contain their account of the milk furnished by Miller to Wise and of the charges made against Miller by Wise for the year 1905 ; in order to show, first, that Wise received milk from Miller during the entire year of 1905 ; and, second, for the purpose of showing that Wise charged Miller with $85.00 interest for the year 1905. In connection with the verbal testimony already offered as to the receipt by Wise of milk of Miller during said year in the same manner as prior to said year. For the purpose of'showing corroborating circumstances of Miller and Wise’s parol agreement made at the time of the signing of the paper marked exhibit No 2. bearing date February 23, 1905.
    Mr. Wiest: Objected to as improper evidence for the purpose offered, or for any other purpose. That the uncontradicted evidence as the case stands shows that the entries of the 130.00 and $35.00 were for the rent mentioned in the lease for these cattle and the other personal property, and were not for interest on any note or contract, and that even without explanation it is not a corroboration of the testimony of the plaintiff as to a collateral or contemporaneous agreement made on February 23. It is irrelevant and. immaterial.
    The Court: We admit this paper for the purpose of showing corroboration as to the dealings of the party as to this milk —the continuation of the dealing as it was before. And for the purpose of tending to show corroboration of the testimony of Miller that the cows were to be paid for by this milk; and seal an exception for the defendant. I do not think those items of' interest have much to do with it; that is a question of argument to the jury. They stand there unexplained, and that is a matter that the jury will have to make out. It is not on account of these items we admit the paper, but on account of the charging of the milk and a continuation of the charging of the milk as before this paper was made. [2]
    The court charged in part as follows :
    Now, a written paper under seal is held to be the agreement of the parties until it is successfully attacked, and it can only be successfully attacked by showing that there was a contemporaneous agreement made at the same time between the parties which was part of the agreement, and without which agreement the parties would not have entered into the written agreement. Therefore, before you can find a verdict for the plaintiff in this case, he having acknowledged in this lease that the cattle were Mrs. Wise’s, and were to be returned to her at the end of his term, and that he was only the tenant of the property, before you can find a verdict for the plaintiff you must be satisfied from the proof — his own testimony and corroborating circumstances existing in the case as to what occurred and what existed the first year before the lease was made, and what is apparent on this statement furnished by the plaintiff himself — whether or not there was such a verbal agreement. If there was, and he merely signed this paper for the purpose of protecting Mr. Wise and Mrs. Wise from the interference of their property; of his own creditors claiming the property, why, then, if you believe the other testimony of the plaintiff and should not believe the testimony of tlxe defendant, you may render a verdict for the plaintiff, notwithstanding the lease and acknowledgments in the lease. If you do not believe the testimony of Miller that John Wise agreed that the contract should go on as before, and the milk was to pay for the cows, and the corroborating testimony which I have just referred to as to what occurred at the farm in Newberry township, and what is alleged to have occurred at the sale by the plaintiff’s witnesses and the plaintiff himself on March 6, and the said affairs existing between them in 1904 in furnishing this milk to the defendant by the plaintiff and its shipment to Baltimore, and the statement of the same milk upon these last statements furnished to plaintiff by defendant, then your verdict will be for the defendant because he acknowledged in this paper, and the paper is in evidence before you, that the cows are the property of Mrs. Wise and he is only the tenant of the same, and he is to deliver up the property at the end of his term. [6]
    May 13, 1907 :
    Verdict and judgment for plaintiff for $283.80. Defendant appealed.

      Errors assigned among others were (1, 2) rulings on evidence ; (6) instructions as above.

      Allen 0. Wiest, with John W. Heller, for appellants.

      John L. Rouse, with him John A. Iloober, for appellee.
   Opinion by

Oblady, J.,

This action of trespass was brought to recover damages for the taking of certain personal property, the title to which was in dispute between the parties hereto. The controversy on the trial was the effect to be given to certain alleged contemporaneous agreements or understandings which were made preliminary to, and at the time of the execution of, the contract between the parties. The defendant requested that under the law and the facts in the case the verdict should be directed in their favor, which was refused and rightly so, as there was sufficient of contradiction in the testimony to warrant the court in submitting the case to the jury. The trouble arises through the manner in which it was submitted to the jury, in the charge, as follows: “ Now, a written paper under seal is held to be the agreement of the parties until it is successfully attacked, and it can only be successfully attacked by showing that there was a contemporaneous agreement made at the same time between the parties which was part of the agreement, and without which agreement the parties would not have entered into the written agreement. . . . . Before you can find a verdict for the plaintiff you must be satisfied from the proof, his own testimony and corroborating circumstances existing in the case, as to what occurred and what existed the first year before the lease was made, and what is apparent on this statement furnished by the plaintiff herself, whether or not there was such a verbal agreement.”

The English rule that parol evidence is inadmissible to vary the terms of a written instrument has long since been departed from in this state; and since that departure a constant temptation has existed to change the terms of a writing by any and all kinds of evidence, to reach equity, or what is fancied to be equity between the parties. The rule in this state is comprehensively announced in Thomas & Sons v. Loose, 114 Pa. 35, to be: “ Parol evidence is admissible of a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform the instrument. It has often been said that such oral agreement must be shown by evidence that is clear, precise and indubitable.” These words clear, precise and indubitable or words of equivalent meaning in measuring the degree of proof necessary to vary, reform or contradict a written instrument by evidence of a contemporaneous pafol agreement have become so thoroughly implanted in our decisions that they are now indispensable, and may not be departed from in submitting to a jury the disputed facts relating to such a subject-matter. A score and more of decisions may be found in a few of the later cases : Streator v. Paxton, 201 Pa. 135; Sutch’s Estate No. 1, 201 Pa. 305; Ogden v. Traction Co., 202 Pa. 480; Miller v. Interstate Casualty Co., 17 Pa. Superior Ct. 360; Butler v. Keller, 19 Pa. Superior Ct. 472. The case was submitted to the jury on the theory that they could discharge their duty by ascertaining in whose favor the weight of the evidence tended ; “ his own testimony and corroborating circumstances,” which under all the decisions is not .of a sufficient grade or weight to destroy the effect of a written contract, and under which decisions the sixth assignment of error is sustained. The reception by the court of the testimony quoted in the first assignment of error was not of itself erroneous, as it was admitted to be but a step in the direction of contradicting the written agreement, and to be followed by other-corroborating testimony. To the same effect was the evidence submitted and complained of in the second assignment of error. The other assignments are so intimately associated with the quotation from the charge of the court that it is not necessary to dispose of them severally.

For the reasons above given, the judgment is reversed and a venire facias de novo awarded.


author: Rice, P.. J.,

text:
    Commonwealth ex rel., Appellant, v. Superintendent of County Prison.

      Extradition — Constitutional law — Sufficiency of warrant — Character of the offense.

    Under the act of congress of February 12, 1793, Rev. Stat. 1022, passed in furtherance of section 2, art. IV, of the constitution of the United [States relating to extraditions, it is requisite that a demand for the fugitive from justice be made by the executive authority of the state or territory from which he fled; that this be accompanied by an indictment found, or an affidavit made before a magistrate charging the fugitive with having committed a crime against the law of the state or territory; and that the copy of the indictment or affidavit be certified as authentic by the chief executive of the state or territory from which such person fled; but it is not necessary that the warrant issued by the governor should show that the offense alleged in the indictment is contrary to the statute or common law of the state where the offense is alleged to have been committed.

      Appeals — Records—Evidence—Extradition proceedings — Bill of exceptions.

    An appeal from an order in extradition proceedings takes up only the record, and not the evidence. The fact that the judge of the quarter sessions granted a bill of exceptions, is immaterial, since it is based on no statutory authority.

      Argued. April 8, 1907.
    Appeal, No. 48, Oct. T., 1906, by plaintiffs, from order of Q. S. Philadelphia Co., Feb. T., 1907, No. 2, remanding relator to custody in case of Commonwealth ex rel. Richard C. Flower, Superintendent of the County Prison.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Petition for writ of habeas corpus. Before Sulzberger, P. J.
    At the hearing the following offer was made :
    Counsel for Richard C. Flower offered to prove that he did not know Isabella Gray Taylor, mentioned in indictment 42,324, court of general sessions of the peace, in and for the county of New York, attached to the requisition; that he did not sell her any stock; that he did not obtain any money from her; that he made no representations or misrepresentations to her ; that she owned no'stock as mentioned in said indictment; that she owned stock in another mining company (Lone Pine Mining Company), with which Richard C. Flower had no connection whatever; that one William F. S. Hart, of No. 5 Beekman street, New York city, had employed one H. C. Woodruff and Frank H. Burr, the latter for ten weeks at $25.00 per week, to have former stockholders of Arizona, Eastern and Montana Smelting, Ore Purchasing & Development Company employ said William F. S. Hart as their attorney, “ to take criminal action against Flower for the purpose of securing the moneys invested in this stock.” That said William F. S. Hart had by such means become attorney for $150,000 par value of stock in Lone Pine Mining Company, with which R. C. Flower had no connection, taking said claims for collection on the basis of contingent fees of fifty per cent, and thirty-three per cent. That five of the clients of said William F. S. Hart, viz.: Isabella Gray Taylor, Henry C. Woodruff, Alden Solomans, Herman A. Butterick and S. W. Woolley, had had indictments found against Richard C. Flower; that no other indictments were pending against him j. that no civil suit had been instituted by William F. S. Hart, and that no civil suits existed, and besides statute of limitations had run against civil suits ; that the said actions of William F. S. Hart were in violation of the laws of the State of New York, constituting the crime of champerty and punishable by imprisonment and disbarment. ' 1
    The court overruled the offer. [2]
    The court ordered that the relator be remanded to custody. [3]

      Errors assigned were (2) ruling on evidence; (3) the order of the court.

      John McQlintook, Jr., and John O. Grady, with them Samuel M. Syneman, for appellant.
    — The executive department can act only in subordination to the judicial department where rights of person and property are concerned, and its duty in those cases consists only in aiding to support the judicial process and enforcing its authority, when its interposition for that purpose becomes necessary and is called for by the judicial department : Roberts v. Reilly, 116 U. S. 80 (6 Sup. Ct. Repr. 291) ; Reggel’s Case, 114 U. S. 642 (5 Sup. Ct. Repr. 1148) ; Com. v. Trach, 3 Pa. C. C. Rep. 65.
    The court could not take judicial notice of the law of the state of New York, and the executive warrant does not state that the alleged offense is against the statutes or the common law of the state of New York: Butler’s Case, 7 Luz. Leg. Reg. 209.

      Morris Wolf, with him John M. Patterson, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee.
    —The cases Seem clear that there is no appeal or writ of error in habeas corpus cases, and that the only course which the relator can pursue, after a final order of the lower court, is to bring the record to the Superior- Court by writ of certiorari: Clark v. Com., 29 Pa. 129 ; Com. v. Butler, 19 Pa. Superior Ct. 626; Com. v. McDougall, 203 Pa. 291; Hall v. Oyster, 168 Pa. 399 ; In re Diamond Street, 196 Pa. 254; Com. v. Strickland, 27 Pa. Superior Ct 309; Waynesburg Borough’s North Ward,' 29 Pa. Superior Ct. 525; Thatcher’s Requisition, 18 Pa. Superior Ct. 533.
    In the absence of statutory authority, a bill of exceptions should not be granted in any case, and a bill of exceptions granted withoutstatutory authority must be disregarded: Middleton v. Com.,'

      May 13, 1907 :
    2 Watts, 285; Hopkins v. Com., 50 Pa. 9; Schoeppe y. Com., 65 Pa. 51; Com. v. Strickland, 27 Pa. Superior Ct. 809; Farnsworth y. Montana, 129 U. S. 104 (9 Sup. Ct. Repr. 253) ; King’s Case, 51 Fed. Repr. 434; Caldwell’s Case, 138 Fed. Repr.
    487; Vane’s Case, 1 Levinz, 68; Faust v. Judge of Calhoun Circuit, 30 Mich. 266 ; Com. v. Harrold, 204 Pa. 154; Com. v. Bunnell, 20 Pa. Superior Ct. 51; Rodovinsky v. Knitting Co., 5 Pa. Superior Ct. 636 ; Levison v. Davis, 212 Pa. 148.
    This court has no jurisdiction to inquire into the question of the guilt or innocence of the prisoner: Com. v. McCandlass, 7 Pa. C. C. Rep. 51; Grin v. Shine, 187 U. S. 181 (23 Sup. Ct. Repr. 98); White’s Case, 55 Fed. Repr. 54; Bloch’s Case, 87 Fed. Repr. 981; Bruce v. Rayner, 62 C. C. A. 501 (124 Fed. Repr. 481) ; Strauss’s Case, 126 Fed. Repr. 327; Herskovitz’s Case, 136 Fed. Repr. 713; Barranger v. Baum, 103 Pa. 465 (30 S. E. Repr. 524).
   Opinion by

Rice, P.. J.,

The third assignment of error raises a question as to the sufficiency of the executive warrant. The constitutional provision upon the subject of fugitives from justice is in these words : “ A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime: ” Const, of the U. S., article iv., sec. 2. Under this provision of the constitution and the act of congress of February 12,1793, Revised Statutes 1022 passed in furtherance thereof, it is requisite: that a demand for the fugitive from justice be made by the executive authority of the state or territory from which he fled; that this be accompanied by an indictment found or an affidavit made before a magistrate charging the fugitive with having committed a crime against the law of the state or territory; and that the copy of the indictment or affidavit be certified as authentic by the chief executive of the state or territory from which such person fled. It is claimed that the warrant issued by the governor of this commonwealth upon the requisition of the governor of the state of New York, which is under review in this appeal, is defective in not showing that the offense alleged in the indictment therein referred to, is contrary ^o the statute or common law of New York. The question is not whether the statement in the warrant would be sufficient in an indictment to put the prisoner on trial in the state from which he fled, but whether it shows that he has been charged with a crime against the.law of that state: Brown’s Case, 112 Mass. 409. It would be hypercritical to say that a statement in the warrant is insufficient for that purpose, which sets forth that the fugitive “ stands charged with the crime of grand larceny, first degree, committed in the county of New York, state of New York, and that he has fled from justice in that state,” and is accompanied by a statement that a copy of the indictment, duly authenticated, is on file in the office of the secretary of the commonwealth.

The question which the appellant seeks to raise by the other two assignments is thus stated by his counsel: “ Is defendant permitted to show that he is not only innocent of the alleged offense, but also that he had no connection whatever with the act and that the prosecution, etc., are not in good faith, but for the mere purpose of collecting an alleged debt?” The proper place for inquiry into the question of the guilt or innocence of the alleged fugitive from justice is in the courts of the state were the offense is charged to have been committed: Pettibone v. Nichols, 208 U. S. 192. And it is not apparent to us that, upon habeas corpus in extradition proceedings, evidence tending to show that the prosecution was not begun in good faith, but for the mere purpose of collecting a debt is receivable, or that, if received and believed, it would warrant the court in discharging the fugitive. But we need not go into the question as to the extent of the power of the court administering the writ of habeas corpus to review upon evidence the action of the governor of the commonwealth; for whatever may be its power in that particular, our revisory jurisdiction on appeal is very limited, and does not go to the extent here claimed. It is only such as the Supreme Court had upon certiorari prior to the act of 1887, wherebjr the name “ appeal ” was given to all appellate proceedings. In Commonwealth v. McDougall, 203 Pa. 291, which was an appeal from an order of the common pleas in a case of habeas corpus for the custody of a child, the Supreme Court distinctly declared that there is no appeal in the case of habeas corpus, even for the custody of a child, and that the so-called appeal had only the effect of a certiorari, which brings up for review the record only, of which the opinion of the judge below forms no part. .In a similar case it was said by this court, that no mode is provided by law, either by bill of exceptions or otherwise, for bringing upon the record of the court below the evidence given on the hearing: “ The proceeding in this court, although called an appeal, is in legal effect but a proceeding upon certiorari, and, therefore, our jurisdiction is confined to an examination of the record proper, of which, as we have suggested, the evidence forms no part: ” Com. v. Strickland, 27 Pa. Superior Ct. 309. See also Clark v. Com., 29 Pa. 129; Com. v. Butler, 19 Pa. Superior Ct. 626. In Thatcher’s Requisition, 18 Pa. Superior Ct. 533, the question we are now discussing arose upon an application f5r an order of supersedeas, and we there held as follows: “ It is sufficient for present purposes to say that even if an appeal does lie, our jurisdiction on appeal must necessarily be confined to an examination of the regularity and legality of the proceedings brought up by the certiorari, and cannot be extended to an examination of the evidence adduced at the hearing or to the rulings of the judge upon questions of evidence.” But it may be said that in the present case, which was in the quarter sessions, the judge granted a bill of exceptions, in which is set forth the offer of evidence which was rejected, and thereby this ruling" was brought upon the record. But a bill of exceptions granted without statutory authority must be disregarded, and it is not claimed that there is any statutory authority for granting a bill of exceptions in a case like the present. In Middleton v. Com., 2 Watts, 285, which was a criminal action for libel, the court sealed exceptions to the rejection of certain evidence, concerning which Chief Justice Gibson, said: “It is not pretended that the judges were bound to seal these bills of exception; but it is said that as they have voluntarily done so, we are bound to inspect the matter supposed to be thus put on the record. But the statute sanctions nothing which it does not enjoin ; and as it has been held in Sir Harry Vane’s case, according to the report of it in 1 Levinz, 68, and Kelyng, 14, to be inapplicable to any criminal matter whatever, the case before us stands precisely as it would have stood before the statute ; to the component parts of a judicial record, as it is defined by the common law, nothing can be addéd without legislative sanction.” Exceptions are now allowed in the quarters sessions in criminal cases by force of a later statute: but this statute does not extend to a proceeding of this nature, and therefore the general common-law principle is applicable.

Finding no error or irregularity in the record the order must 'be affirmed.

The order remanding the relator, Richard C. Flower, is affirmed, and the record is remitted to the court below with directions that the said Richard C. Flower forthwith surrender himself into the custody to which he was remanded and that the aforesaid order hereby affirmed and the governor’s warrant referred to in these proceedings be fully carried into effect. •


author: Henderson, J.;

text:
    Commonwealth v. Pollak, Appellant.

      Liquor law — Selling without license — Taking orders for brewery.

    On the trial of an indictment for selling liquor without a license, it appeared that the defendant was a groceryman and also the agent of an express company, and that when one of his customers applied for beer it was his practice to sell him a money order of the express company and forward this order to a brewing company in another county, together with the name of the person who was to receive the beer, whereupon the beer was shipped by rail in care of the defendant, or of a drayman, doing business in the place, each package of beer having attached to it the name forwarded by the defendant. It appeared that in some cases no written order was given, and the purchaser did not know where, or from whom the beer was to be obtained. Some of it was delivered by a drayman employed by the defendant. Some of the purchasers paid nothing for the delivering’ of the beer to them. Held, that the question whether the defendant sold beer in the place where he resided, was for the jury, and that a conviction should be sustained.
    Argued April 8, 1907.
    Appeal, No. 85, April T., 1907, by defendant, from judgment of S. Butler Co., March T., 1906, No 48, on verdict of guilty in case of Commonwealth v. Joseph Poliak.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.

      May 13, 1907 :
    Indictment for selling liquor without a license. Before Gal-breath, P. J.
    The facts appear by the opinion'of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were the various instructions.

      S. F. Boivser, with him W. Z. Murrin, A. L. Bowser, F. X. Kohler and B. A. Winternitz, for appellant.

      Samuel Wctlker, district attorney, for appellee, cited: Com. v. Gujá, 28 Pa. Superior Ct. 58 ; Com. v. Holstine, 132 Pa. 357. í
   Opinion by

Henderson, J.;

The defendant was engaged in the grocery business in Lyndora, a suburb of Butler in Butler county. His conviction was for selling liquor without a license. Numerous foreigners working in the vicinity went to the defendant’s store to procure beer. Some of them were unable to read or write. The defendant had in connection with his business an agency of the American Express Company and when one of his customers applied for beer it was his practice to sell him a money order of the express company and forward this order to a brewing company at New Castle, together'with the name of the person who was to receive the beer, whereupon the beer was shipped by rail in care of the defendant or of a drayman doing business in the place, each package of beer having attached to it the name forwarded by the defendant. In some instances written orders were given by the purchaser to the defendant to be forwarded to the brewery. In other cases, as shown by the commonwealth’s evidence, no order was given and the purchaser did not know where or from whom the beer was to be obtained. It appeared from the commonwealth’s evidence that some of the consignments were in care of a drayman who was employed by the defendant to deliver the packages to the persons whose names were marked thereon. Some of the purchasers did not pay anything for the delivering of the beer to them. The1 brewing company acknowledged to the defendant and his brother the receipt of express money orders forwarded by them for the heer, which they directed to be shipped to the persons named by them. According to the testimony of one of the witnesses for the commonwealth the defendant employed him to deliver beer from the railroad station to the purchasers and gave directions with reference thereto. One of the draymen in whose care consignments of heer were made was not advised of such shipments until directed by the defendant to distribute the packages to the purchasers ; nor was he employed by such purchasers, nor paid by them for such deliveries. The defendant’s allegation was that his relation to the business was that of furnishing express money orders and transmitting them on request to the brewery and that his only connection with the business of the brewing company was that he was employed by that company to collect the empty packages and return them to the brewery, for which he received compensation ; that he was not interested in the sale of the beer. Whether the transactions amounted to sales in Butler county was clearly a question of fact to be passed upon by the jury. It was the undoubted right of the brewing company to ship to its customers by delivery to the railroad company on all orders received in the regular course of business, although the beer was consigned to parties living outside of the county in which the brewery was located: Com. v. Fleming, 130 Pa. 138. Such sales are to be considered as made at the place of business of the dealer, and if this were all that was shown in the present case there would be no foundation to support the conviction. The evidence was sufficient, however, to warrant the conclusion that the plan adopted by the defendant was a device to evade the law ; that he was a middleman dealing directly with customers who did not know of the whereabouts or existence even of the brewing company. The ignorant people who bought the beer were unfamiliar with business methods or the means necessary to be adopted to make their purchases lawful. So long as their wants were supplied it was a matter of no concern what method was adopted. Some of them, at least, onty knew the defendant in the transaction. They gave their orders to him ; he received their money and directed the delivery of the heer to them. The consignment by the brewing company was not necessarily equivalent to a delivery. Whether it had that effect is a question of intention to be determined from all the circumstances of the case. The marking of the packages would not conclusively give to the transaction the character of a sale directly to the persons whose names were placed thereon. It might amount to a designation for the convenience of the defendant, and the shipment of the goods in his care, and the acknowledgment to him by the brewing company of the receipt of the money transmitted gives color to that inference. In the light of the evidence offered there is no substantial ground for criticism of the charge of the court. The issue was clearly and fairly stated and the jury could not have been misled as to the questions submitted for their consideration. The court’s reference to the testimony of Harry Sutton was not improper in view of the character of the defense. His testimony was important and went far, if believed, to support the commonwealth’s case. The trial judge did not assume, however, that his testimony was true. The question of its credibility was left to the jury. Taking the portions of the charge assigned for error in connection with their context, we think they are not open to the criticism of partiality. The ruling of the court on the objection to the evidence as set forth in the fifth assignment of error was correct. The defendant claimed that he was not in any way interested in or concerned with the shipment of the beer. It was pertinent, therefore, to ascertain whether the brewing company had not made shipments in his care. Of like character is the letter, exhibit 5, the admission of which is assigned for error in the sixth specification. This letter shows that the defendant and his brother sent money orders to the brewing company for the shipment of thirty-one kegs and forty-two cases of beer for seventeen different persons. It supports the allegation of the commonwealth that the defendant was engaged in the sale of liquor and that his mode of business was adopted to protect him from liability for unlawful selling. The case is within the doctrine of Com. v. Holstine, 132 Pa. 357 and Com. v. Guja, 28 Pa. Superior Ct. 58 and was properly submitted to the jury under the evidence.

The judgment is affirmed and the record is remitted to the court below for the purpose of execution.


author: Henderson, J.,

text:
    Commonwealth v. Tynnauer, Appellant.

      Liquor law — Selling without a license — Sale by agent.

    On the trial of an indictment for selling liquor without a license the evidence tended to show that the defendant represented a firm of liquor dealers in another state, that he took orders from various persons in Pennsylvania for small quantities of liquors, such persons not signing the orders, that the principals on receiving the orders filled them and sent them, charges prepaid, by express C. O. D. to the purchasers, who went to the express office, paid for the packages and took them away. The court submitted to the jury the question whether the sale was made in this state, or whether it was complete when the goods were delivered to the carrier in the' other state. Held that a conviction should be sustained.
    Argued April 8, 1907.
    Appeal, No. 86, April T., 1907, by defendant, from judgment of Q. S. Butler Co., March T., 1906, No. 50, on verdict of guilty in case of Commonwealth v. Samuel Tynnauer.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Indictment for selling liquor without a license. Before Galbreath, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed. ■

      Error assigned was in submitting the case to the jury.

      S. F. Boivser, with him A. L. Bowser and Theo. O. II. Keck, for appellant.
    — The place of sale is the point at which goods ordered are set apart and delivered to the purchaser, or a common carrier who, for the purposes of delivéry, represents him : Garbracht v. Com., 96 Pa. 449;. Commonwealth v. Fleming, 130 Pa. 138; Commonwealth v. Hess, 148 Pa. 98; Pittsburg Glass Co. v. Doubleday et al., 2 Pa. Superior Ct. 170.
    Where, in. the trial of an indictment, the facts in evidence are admitted or undisputed, and are insufficient to establish that the offense charged has been committed by the defendant, it is the duty of the court, on request therefor, to direct the jury to return a verdict of not guilty: Commonwealth v. Ruddle, 142 Pa. 144; Commonwealth v. Zuern, 16 Pa. Superior Ct. 588; Commonwealth v. Harris, 168 Pa. 619; Pauli v. Commonwealth, 89 Pa. 432; -Commonwealth v. Hess, 148 Pa. 98.
    May 13, 1907 :

      Samuel Walker, for appellee.
    — The testimony in this case does not warrant the application of the general rule in regard to the place of sa-le, but the modified rule as stated in Gerbracht v. Commonwealth, 1 Pennypacker, 471, is the one that governs this case.
   Opinion by

Henderson, J.,

This case turned in the court below on the question whether the sales of liquors were made in Youngstown, Ohio, or in Butler county. The defendant, representing a firm of liquor dealers in Youngstown, took orders from various persons and forwarded them to his principals, by whom the liquor was sent by express O. O. D. to the purchasers. The orders were taken down by the defendant in his manifold orders book, but were not signed by the purchasers. The express charges were paid by the vendor. The purchasers did not give any direction as to the manner or place of delivery, but were notified by the defendant to go to the express office to get their liquor. They received their goods there upon payment of the price. The commonwealth alleges that the arrangement and agreement was that the delivery was to be in Butler county, and that, therefore, the sale was consummated in that county. It was contended on the part of the defendant that he was a canvasser, merely, or the firm which be represented, employed on a fixed weekly compensation ; that when he transmitted the order to the firm his connection with the business ceased; that he had nothing to do with the delivery of the goods nor with the collection of the amount paid therefor. The right of the Youngstown dealers to ship by railway or by express to customers in Butler county on orders received by them in the course of their business is not open to dispute, whether the orders were sent directly by the customer or were obtained by a solicitor. Such sales are regarded as complete at the dealer’s place of business when the goods are set apart for the purchaser and not at the place of destination. And this is so although the price paid, is collected by the carrier when the property is received by the purchaser. Where, however, the vendor undertakes to deliver the goods at a place designated the carrier is his agent and the title does not pass until the delivery there, and the transaction becomes a sale at the point of delivery: McNeal v. Braun, 53 N. J. Law, 617; Sneathen v. Grubbs, 88 Pa. 147; Braddock Glass Co. v. Irwin, 153 Pa. 440. The judge of the coart of quarter session held that the question where the delivery was made was one of fact to be found by the jury. The commonwealth offered evidence from which it might be concluded that the agreement with the purchasers was that the whiskey was to be delivered in Lyiidora. They were told that the liquor would be at the express office two days later and that they should take the carbon copies of the orders left with them by the defendant to the express office and get the whiskej'. One of the witnesses testified that the defendant said the whiskey would be délivered there. Taken in connection with the fact that the orders given were verbal, for small quantities, without direction by the purchasers as to the mode of shipment or place of delivery, that the cost of carriage was paid by the vendor and the price paid by the buyer at the express office, a jury might conclude on such a showing that it was the understanding between the parties that deliveries were to be made to the purchasers in Butler county and not at Youngstown. If this were the agreement and it was carried out as claimed by the commonwealth the sale took place in Butler county and the defendant is liable under the statute. The evidence was conflicting, but it was for the jury to determine whether the delivery was to be made in Butler county. The charge of the court presented the issue fully, clearly and fairly and we are not persuaded that any error was committed in the instructions given.

The judgment is, therefore, affirmed and the record remitted for the purpose of execution.


author: Beaver, J.,

text:
    Bauer v. Verona Ferry Company, Appellant.

      Ferrier — Common carriers — Negligence—Animals.
    A ferryman is a common carrier of goods, and like other common carriers is an insurer of the property committed to his care and is responsible for all injuries to it, except such as may be caused by the act of God or a public enemy. The ferryman’s liability as a common carrier is not relieved or lessened by the fact that the goods are usually accompanied by the owner. His responsibility in regard to animals is the same as in the case of other property, except where the loss or injury is due to the animals’ own restiveness or viciousness of temper.
    A ferryman must maintain safe and suitable landing places for the ingress and egress of passengers and teams, and appliances of sufficient strength to hold the boat securely to her moorings, but he is not bound to guard against all possible accidents which could not reasonably have been foreseen, nor is he bound to adopt new and improved methods, where those already in use are reasonably safe. The duty as to the safety of landings applies not only to the immediate means of getting on and off the boat, but requires the ferryman to furnish safe passageways between the ferryhouses and the streets.
    Argued April 9, 1907.
    Appeal, No. 7, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 954, on verdict for plaintiff in case of John Bauer v. Verona Ferry Company.
    Before Rice, P.J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass for injuries to horses. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff.

      jErrors assigned were (1) refusal of binding instructions for defendaiit; (2) refusal of judgment non obstante veredicto, and (3, 4) portions of the charge quoted in the opinion of the Superior Court.

      J. P. Hunter, of Lyon, Hunter Burhe, for appellant.
    — The landing not being on a superstructure erected by the defendant, but on a public highway, and the accident not arising from any defect in any of the means of transportation furnished by the defendant, the defendant is not liable as a common carrier: White v. Winnisimmet Co., 61 Mass. 155; Sturgis v. Kountz, 165 Pa. 358; Mayor, etc., of New York v. Starin, 106 N. Y. 1 (12 N. E. Repr. 631).
    May 13, 1907 :
    The plaintiff saw that there was water to travel through in order to get from the boat to the land. He saw there irregularities in the ground; his driving off the boat with such knowledge constituted contributory negligence: Fogassi v. R. R. Co., 17 App. Div. 286 (45 N. Y. Supp. 175); Reilly v. Ry. Co., 4 W. N. C. 273; Fish v. Cooper’s Point, etc., Ferry Co.,4 Phila. 103; Hayman v. R. R. Co. 118 Pa. 508.

      Alfred "M, Lee, with hirn John L. Watson, for appellee,
    cited : Ferris v. Union Ferry Co., 36 N. Y. 312; Osborn v. Ferry Co., 53 Barb. (N. Y.) 629; Hazman v. Hoboken Land, etc., Co., 50 N. Y. 53 ; Dougherty v. N. Y. Cent., etc., R. R. Co., 86 N. Y. Supp. 746 ; May v. Hanson, 5 Cal. 360.
   Opinion by

Beaver, J.,

The plaintiff’s testimony, which is practically uncontradicted, the defendant having introduced none, discloses the following state of facts: The defendant is an incorporated ferry company which ferries passengers across the Allegheny river from Montrose to what is .said, in one part of the testimony of the secretary and treasurer of the company, to be James street, Verona, and Grant street in another. The plaintiff, driving his own wagon loaded with household goods, which he was hauling from Allegheny to Verona for hire, drove upon the ferryboat of the company behind another wagon and was ferried across the river. There seeTns to have been no slip at the landing and, whether or not the boat was provided with a falling curtain does not appear. When the boat came within two or three feet of the street landing, the intervening space being covered with water, the first team drove off and landed safely, notwithstanding a jolt which was observed by the plaintiff. According to his testimony, he made careful inquiry of the custodian of the boat as to whether or not it was safe to land, and, having been assured more than once that he should drive off, that the landing was safe, he attempted to drive to the street, his horses stumbling in a sand hole in the river,, his wagon pressing upon them in such a way that both were seriously injured.

The plaintiff recovered a verdict for $277.40 which, upon the argument-of amotion for judgment in favor of defendant n. o. v., was reduced by the court to $226, with an alternative that, if the amount were not accepted by the plaintiff, a new trial would be granted. The plaintiff filed an agreement to accept the amount fixed by the court, and judgment was entered upon the verdict, from which defendant has appealed.

The duties and liabilities of a ferryman, based upon the decisions in many different states and countries, are summarized in 19 Cyc. 508 et seq.: “ A ferryman is a common carrier of goods, and like other common carriers is an insurer of the property committed to his care and is responsible for all injuries to it, except such as may be caused by the act of God or a public enemy. The ferryman’s liability as a common carrier is not relieved or lessened by the fact that the goods are usually accompanied by the owner. His responsibility in regard to animals is the same as in the case of other property, except where the loss or injury is due to the animals’ own restiveness or viciousness of temper.

“ There is a diversity of opinion as to the liability of a ferryman for property which a passenger takes with him upon a ferryboat for transportation and does not deliver into the custody of the ferryman, but retains under his own control and management. It has been held that, in such a case, the owner acts in the control of his property, solely as the agent of the ferryman, whose responsibility is that of a common carrier, insuring the safety of the property. On the other hand, it has been held that the liability of a ferryman in such cases is more restricted.”

Under circumstances such as we have here presented, it has been held that: “A ferryman must maintain safe and suitable landing places for the ingress and egress of passengers and teams, and appliances of sufficient strength to hold the boat securely to her moorings, but he is not bound to guard against all possible accidents which could not reasonably have been foreseen, nor is he bound to adopt new and improved methods, where those already in use are reasonably safe. The duty as to the safety of landings applies not only to the immediate means of getting on and off the boat, but requires the ferryman to furnish safe passageways between the ferryhouses and the streets.”

The remarks of Jervis, C. J., in Willoughby v. Horridge, 74 E. C. L. 742, would seem to be specially applicable here: “ The fact of their being carriers is introduced for the purpose of showing how the mare got into their possession; but the foundation of the action is the aggressive negligence of the defendants. In substance, the charge against the defendants,- is, that they took the plaintiff’s mare for hire, to be conveyed from Birkenhead to Liverpool, and, through their negligence, the mare was killed. No doubt the defendants, as ferrymen, are bound to continue the road from Birkenhead to Liverpool, and duly to provide everything necessary to perfect that road. It is not enough for them to convey' passengers' and goods across the river, unless they also bridge over the intervening space between the vessel and the landing place. They are as much bound to furnish a safe slip for that purpose as to furnish a safe vessel to cross the river.”

In Sturgis v. Kountz, 165 Pa. 858, although an entirely different case from what we have here was presented, it was held, as stated in the syllabus, that: “ It is the duty of a ferryman who undertakes to carry passengers, horses and vehicles for hire, to carry safely as against defects and insufficiency of his boat or neglect on part of himself and servants.”

With these general principles in mind, which are supported by abundant authority, it is -not difficult to reach the conclusion that the court could peither give binding instructions for defendant, as requested, nor, upon a careful consideration of the case, enter judgment for thé defendant n. o. v. The first and second specifications of error must, therefore, be overruled.

The third specification assign's for error a single paragraph of the charge of the trial judge in thé court below, which is : “A ferry company is what is known as a common carrier. It belongs to the sanie class of corporations as a railroad • company, and, as a common carrier, the law imposes certain dutiés or obligations upon the company. Among those duties is to provide a proper boat or ferry for the purpose of conveying its passengers. It must also provide proper approaches to and from the land to its boats for the purpose of enabling persons to use its boats in safety, just the same as the law imposes the duty upon a railroad company of furnishing safe and proper means of transport for its passengers and also a safe place for its passengers to alight from the cars; and a failure to perform any of these duties upon the part of the carrier is negligence and, if an injury results from that negligence, the injured person is entitled to receive compensation for the injury.”

It very clearly appears from this paragraph that the court did not impose upon the defendant the duty of a common carrier, as an insurer of the goods transported, but based the right of recovery solely upon the question of negligence.

In the paragraph of the charge immediately folloAving that which is assigned for error, there is a carefully considered definition of negligence, and later on the trial judge says: “ The first question for you to determine is whether or not, under all the circumstances, the ferry company was guilty of negligence. If it was not guilty of negligence, that is the end of the case. If it did all it could be reasonably expected to do, under the circumstances, and the injury was the result of some unforeseen accident, something that could not under the circumstances have been avoided, that is the end of the case. The defendant is not responsible and. the plaintiff cannot recorTer in these proceedings, but, on the other hand, if you can find that the defendant company Avas guilty of negligence, that it did not make a proper landing, and, as a result of the information obtained by the plaintiff from the ferryman, the accident happened which resulted in injury to the horses, then the defendant company is liable and it must compensate the plaintiff for the injuries sustained through its negligence.” This Avas in entire accord with the authorities and the general conclusions stated as their summary at the beginning of this opinion, and seems to us- to have sufficiently and fairly covered the entire case.

The facts, as they appeared in the testimony, were fairly stated, leading up to these general conclusions. The trial judge evidently had in mind the restricted liability of the common carrier, growing out of the fact that the plaintiff, who was the driver of his horses and had them under his own custody and control, could only recover on the ground of negligence. This was the most the defendant could fairly ask under the authorities, and whether or not there was negligence was a question for the jury and the instructions upon this subject were based upon established and well-known precedent. We, therefore, overrule the third specification of error.

The fourth specification relates to the knowledge of the defendant company as to the existence of the hole into which the horses plunged, which resulted in the accident of which the plaintiff complained. The paragraph complained of is as follows : “ But the hole being there, the contention of the defendant is that there was no evidence to show that the company was aware that it was there. As I understand the law, it was the duty of the company to know whether the hole was there, and whether the plaintiff could drive from the boat in safety.” If it was the duty of the company to provide a safe landing, this, of course, involved a presumption of the knowledge on its part, and imposed the duty of seeing that the landing was safe.

Taking the charge as a whole, we think it was entirely adequate and was free from error.

Judgment affirmed.


author: Morrison, J.,

text:
    Szok v. Crown, Appellant.

      Accord and satisfaction — Payment—Attorney at law.

    Where an attorney at law collects a claim for a client, and there is no dispute as to the amount collected, but the attorney arbitrarily fixes the amount of his fee, and gives a check to his client, which recites payment in full, the client may accept and use the check as payment on account, and sue for the balance which he claims that the attorney wrongfully withholds from him.
    Argued April 9, 1907.
    Appeal, No. 19, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 1,114, on verdict for plaintiff in case of John Szok v. Joseph Crown.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit against an attorney at law for a balance collected.

      May 13, 1907:
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in refusing binding instructions for defendant.

      L. 0. Barton, for appellant,
    cited: Washington Nat. Gas Co. v. Johnson, 123 Pa. 576; Flynn v. Hurlock, 194 Pa. 462; Crawford v. Oil Co., 189 Pa. 415; Daly v. Dallmeyer, 20 Pa. Superior Ct. 366.

      E. J. McKenna of McKenna $ McKenna, for appellee,
    cited: Jennings v. McConnel, 17 Ill. 148; Batdorf v. Albert, 59 Pa. 59; Russell v. First Presbyterian Church, 65 Pa. 9; Tucker v. Murray, 2 Pa. Dist. Rep. 497 ; People v. Supervisors of Cortland County, 40 How. (N. Y.) 53 ; Norman Lumber Co. v. Furniture Co., 6 North. 68; St. L., etc., Ry. Co. v. Davis, 35 Kas. 464 (11 Pac. Repr. 421); Brockley v. Brockley, 122 Pa. 1; Laird v. Campbell, 92 Pa. 470; Com. v. Cummins, 155 Pa. 30.
   Opinion by

Morrison, J.,

In the spring of 1898 the plaintiff made a contract with the defendant, an attorney at law, to collect a claim of something over $1,000 against .the Pulaski Building and Loan Association. It is conceded that the defendant undertook to collect the claim and pay over to the plaintiff the sum of $950, retaining for his services the amount he should recover in excess of that sum. The plaintiff, however, averred and testified that the defendant was to pay him $1,000 and retain the excess. This, however, is not the material dispute in the case and it is not contended that this question was not fairly submitted to the jury.

The defendant succeeded in collecting something over $1,000 and on May 5, 1899, made his check in favor of the plaintiff for the sum of $806.26, inserting in the check the words “ in full judgment No. 675, March Term, 1898, Pulaski B. & L. Association, per statement.” The plaintiff took the check and the amount of it was paid to him by the bank. After this the plaintiff went to the defendant and induced him to pay a $10.00 retaining fee which he had given the defendant before the commencement of the suit. At a still later period, the plaintiff demanded the difference between tbe check above referred to, and $1,000. The defendant refused to comply with this request and the present suit was begun.

At the trial the defendant admitted that he agreed to collect the claim and pay the plaintiff $950, but in justification of his paying only $806.26, he set up a second contract, averring that the plaintiff agreed to allow him to deduct from the collection a reasonable fee. This agreement was strongly denied by the plaintiff and he was corroborated to some extent by other testimony. It is to be noted that there was no dispute as to the amount of money the defendant collected on the plaintiff’s claim, nor was there any dispute as to the amount paid to the plaintiff, nor as to the original contract that the defendant would collect the claim and pay the plaintiff at least $950 ; the plaintiff claimed this sum was fixed at $1,000, and it is evident that the jury found with him on this question. What, then, is the real dispute ? It is whether or not there was a second contract that the defendant should be allowed to retain a reasonable sum for his services. It is quite clear.th&t the jury found there was no such second contract. We are unable to see how the case could have been properly tried without submitting to the jury, under the evidence, what the real contract was. An examination of the testimony and the charge of the learned court convinces us that this question was fairly and impartially submitted to the jury.

That body having found that the defendant had had in his hands $1,000 of the plaintiff’s money, in addition to the $10.00 retaining fee, and that he had only paid $806.26 to the plaintiff, found a verdict in favor of the plaintiff for the difference, with interest, and the learned court refused to enter judgment in favor of the defendant non obstante veredicto, and entered judgment on the verdict. Upon this state of facts we are not convinced that the learned court erred in submitting the disputed questions to the jury and in refusing judgment for the defendant non obstante veredicto, and entering judgment on the verdict.

If we understand the argument of the learned counsel for the defendant, he contends that the' check of May 5, 1899, when accepted and used b.y the plaintiff, amounted to accord and satisfaction and that, therefore, the plaintiff was estopped from suing to recover the difference between the amount of the check and $1,000. If this had been an ordinary dispute between the parties as to the amount owed by the defendant to the plaintiff, and they had met, and, after going over their respective claims, had compromised and agreed upon a settlement by the payment of $806.26 by the defendant, undoubtedly such settlement and payment would have amounted to accord and satisfaction. But there never was any dispute that the defendant had in his hands $950 or $1,000 of the plaintiff’s money, unless he was entitled to deduct reasonable attorney’s fees therefrom, and his right to do so depended upon the contract above referred to, and the jury found that he had no such right; the parties did not meet and agree to the deduction of fees from the $1,000. The defendant undertook to fix the amount of his fees and to hold the plaintiff to accord and satisfaction by writing in the check “ in full,” etc. Upon the facts of this case, it being between attorney and client, we hold that the plaintiff could accept and use the check and sue for the balance alleged to. have been in defendant’s hands.

The appellant’s counsel cites Washington Nat. Gas Co. v. Johnson, 128 Pa. 576, to support the proposition that, “ If, pending the adjustment of a disputed liability, the debtor transmit money to his creditor as payment in full of the demand, the creditor may not receive and retain the money as a credit upon a larger sum claimed by him without discharging the debtor as to the whole.” That was said in a case where there was a real dispute between the parties as to the liability of the defendant and to what amount. In the present case there was no dispute as to the amount of the plaintiff’s money in the hands of thé defendant, and the jury has found that the plaintiff never compromised by accepting a less amount than his claim. He simply used the check for so much on account. We think the present case can be distinguished from Gas Co. v. Johnson.

Flynn v. Hurlock, 194 Pa. 462, is also cited, but that was a case where the defendants denied their liability, and there was finally a payment of an amount and the plaintiff receipted by the words, “ Received payment in full of all demands,” and the defendant offered to pay on the express ground that the plaintiff would sign the receipt. We do not think that case controls our question.

Crawford v. Oil Co., 189 Pa. 415, is cited, but we do not think it controls the present question. The Supreme Court said (p. 419) : “ The plaintiff’s receipt was in full for the professional services for which he now claims additional compensation. The oral testimony of the plaintiff being absolutely opposed by the testimony of Mr. Cummins is insufficient to warrant the jury in disregarding the receipt.” That was a case where the attorney had receipted in full for his services, and he did not have sufficient evidence to overcome the weight of the receipt and the testimony of a living witness, and, therefore, he could not recover. We have also examined Daly v. Dallmeyer, 20 Pa. Superior Ct. 366, cited by appellant, but do not think it rules the present case against the plaintiff.

Perhaps no principle of law is better settled than that the payment of a part of an ascertained, overdue and undisputed debt, although accepted in full satisfaction, and a receipt in full is given, does not estop the creditor from recovering the balance : Brockley v. Brockley, 122 Pa. 1; Martin v. Frantz, 127 Pa. 389; Com. v. Cummins, 155 Pa. 30.

Upon the facts of the present case we are not willing to hold that the plaintiff was required to return the $806.26 before he could compel the defendant to pay the remaining $193.74 belonging to the plaintiff. The sum paid by the check was confessedly the plaintiff’s own money, and the defendant could not get title to the $193.74 by arbitrarily fixing his own fees and writing in the check for the $806.26 “ in full,” etc.: Mowry v. National Protective Society, 27 Pa. Superior Ct. 390. It must be conceded that the defendant did not receive adequate compensation for his services, but the jury has found that he received compensation in accordance with his contract with the plaintiff.

We find no reversible error raised by the assignments and they are all dismissed, and the judgment is affirmed.