author: Head, J.,

text:
    Commonwealth v. Shaffer, Appellant.

      Criminal law — Malicious mischief — Malice—Tearing down fences— Destroying windows and doors — Railroad—Condemnation of land — Acts of March 31, 1860, sec. 148, P. L. 382, and March 23, 1865, sec. 1, P. L. 42.
    In a prosecution for malicious mischief, malicious intent towards the owner, real or constructive, of the property injured, must always be proven.
    A person cannot be successfully charged with the commission of malicious mischief where he shows that the title to the property injured was in himself, or shows a belief, although mistaken, that the property was his own.
    Where a railroad company has regularly begun and completed condemnation proceedings by filing its bond according to law, and has procured the approval of the same by the court, employees of the company cannot be convicted of malicious mischief under the Acts of March 31, 1860, sec. 148, P. L. 382, and March 23,1865, sec. 1, P. L. 42, because they went upon the premises under the instructions of the company, and tore down fences, and windows and doors, to clear away obstructions so as to prepare the property for use for railroad purposes, the evidence showing that the entry was after reasonable notice and was not accompanied with any acts of wantonness or malice. In such a case the title to the property vested in the railroad company as soon as the bond was filed, and the former owner had no right to continue to occupy it, and no standing to prosecute the employees for their acts in removing the obstructions.

      Criminal law — Forcible entry — Railroads—Condemnation proceedings.

    Where a railroad company has condemned land and has perfected its title thereto by filing its bond and securing the confirmation of the bond by the court, its employees may enter upon the premises, and remove the permanent buildings thereon without liability to prosecution for forcible entry, provided they do not abuse their power.
    If the former owner's refusal to surrender possession, renders an entry by force necessary to oust him, such entry is not the act of an individual to enforce a private right, but the act of the public to enforce a public right.
    Argued Oct. 2, 1906.
    Appeals, Nos. 30, 31, 32, 33 and 34, April T., 1907, by defendants, from judgment of Q. S. Cambria Co., Sept. T., 1905, Nos. 47, 48, 49, 50 and 51, Sept. T., 1905, on verdict of guilty in case of Commonwealth v. E. P. Shaffer et al.
    Before Rige, P. J., Portee, Henderson Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Indictments for malicious mischief and forcible entry. Before O’Connor, J.
    From the record it appeared that the Pennsylvania Railroad Company condemned a property in the city of Johnstown belonging to one John Schonhart, and duly filed their bond which was confirmed by the court. Schonhart refused to surrender possession, and the defendants, who were employees of the railroad company under instructions from the company, went upon the premises and proceeded to remove the fences and permanent buildings in order to clear the way for railroad construction. There was testimony that a large number of persons were gathered together, and that the defendants were armed with crowbars and picks. There' was also testimony that in removing the windows, doors and partitions, carpets were injured.
    The court charged in part as follows:
    Now, does the testimony satisfy you, beyond a reasonable doubt, that the conduct of the defendants on this occasion evidenced violence and a strong hand ? Some of the witnesses testified that the defendants were armed with crowbars and picks. The prosecutor testified that he had a stick, but it was not strong enough, and he got or asked for a baseball bat. We are only recalling this so as to direct your attention to the material part of the testimony in the case, for upon it depends your verdict. You have a right to consider this testimony; you have a right to consider the testimony to the effect that there was a large number of people assembled there; you have a right to consider all the testimony in the case as bearing upon the question whether or not there were violence and a strong hand shown there and whether or not the peace of the neighborhood was disturbed. It is not necessary that a blow be struck. If the neighborhood is disturbed — if the peace and quiet of the neighborhood are disturbed — by some show of violence or some loud and unseemly conduct, that would be sufficient to make out a breach of the peace.
    You take the case and determine carefully what the facts . are. If the evidence brings your minds to the firm, unwavering conclusion, beyond a reasonable doubt, that there was such a strong show of force as to frighten the members of the ^chonhart family and to disturb the neighborhood, and that the defendants, in that manner, took possession of the property, you convict them of forcible entry. If you are not so satisfied from the evidence in the case, then it would be your duty to acquit them; in other words, if the evidence does not satisfy you of the guilt of the defendants beyond a reasonable doubt the defendants are entitled to the benefit of the doubt and you would acquit them.
    The other three bills of indictment relate to malicious mischief. Mr. Robinson is charged with malicious mischief committed upon June 7, and in the other bills the other defendants are charged with having committed the offense in the morning of the same day, about 11 o’clock, and also in the afternoon. Did these defendants,-or any of them, at any time, act with such total disregard for the property rights of the prosecutor in the case as satisfies you, beyond a reasonable doubt, that they at least had what is known as legal malice ? It is not necessary, in order to make out a case of this character, that the defendants acted with special malice; that is, with spite or ill will; this of itself constitutes legal malice, and legal malice is an element which must appear before there could be a conviction of malicious mischief.
    In this connection we call your attention to the fact that the owner of the property was the Pennsylvania Railroad Com-, pany; that is, they were entitled to the possession of the prop- •< erty, and if the injury committed were only to their own property, then it would not be malicious mischief, because they would have the right to use their own property as they pleased. But if in the destruction of their own property— that is, the property of the Pennsylvania Railroad Company— the}’- injured the property rights of the prosecutor through a plain disregard of his rights (you have heard, for instance, about the tearing down of the plastering, the throwing of this stuff upon the carpets, etc.), and you find, under our instructions, that there was such a disregard for the property rights of the prosecutor as amounts to legal malice, then the defendants could be convicted of malicious mischief. If there was not, or if you have a reasonable doubt upon that point, then you would render a verdict of not guilty in either or all of such indictments as you find the facts to thus exist.
    February 25, 1907:
    Verdict of guilty. The court refused to arrest the judgment and sentence was duly passed.

      Error assigned among others was in refusing to arrest the judgment.

      II. W. Storey, for appellants.
    — No malice was shown : Com. v. Drass, 146 Pa. 55; Williams v. People, 24 How. Prac. 350; Schuler v. R. R. Co., 3 Wharton, 555.
    It seems the authority given to the Pennsylvania Railroad Company to enter upon, take, use and appropriate any land which may be necessary for the public benefit was ample, as much so as an eviction by a sheriff or a constable; either of them would be with the authority of the law.
    The authorities seem to hold that the action of forcible entry and detainer does not apply in any case where the right of eminent domain exists: Gibbs v. Drew, 16 Fla. 147 ; Rees v. Lawless, 12 Am. Dec. 295; Mitchell v. R. R. & Coal Co., 68 Ill. 286; McMasters v. Com., 3 Watts, 292; People v. City of New York, 32 Barb. 102.

      M. B. Stephens, with him J. W. Leech, district attorney, and John II. Stephens, for appellee.
    — In a prosecution for forcible entry and detainer the question of title is not at issue, and evidence relating thereto may be properly rejected: Quinn v. Commonwealth, 20 W. N. C. 293.
    Malice may be inferred from the wantonness or cruelty of the act or from the willful disregard of the rights of others: Com. v. Strode, 27 W. N. C. 437.
    Malicious mischief has been held in Pennsylvania to apply to animate, as well as inanimate, objects, and the courts have gone further than in England or any other state in holding malicious mischief to be an indictable offense : Davis v. Commonwealth, 30 Pa. 421; Commonwealth v. Cunningham, 1 Pa. Dist. Rep. 573; Commonwealth v. Nusky, 1 Pa. Dist. Rep. 561.
   Opinion by

Head, J.,

By section 148 of the Act of March 31, 1860, P. L. 382, it is provided that if any person shall willfully and maliciously break, injure or destroy any window or door belonging to any dwelling house or outhouse parcel thereof, such person shall be guilty of a misdemeanor, etc.

By section 1 of the Act of March 28,1865, P. L. 42, it is provided that if any person shall maliciously or wantonly break and throw down any post and rail fence erected for the inelosure of land, or shall carry away, break or destroy any post, rail or other material of which such fence was built, such person shall be guilty of a misdemeanor.

Three of the five indictments under which the appellants were tried in the court below charged them with having committed malicious mischief in violation of the provisions above cited. The property mentioned in each bill is precisely the same, to wit: a certain fence inclosing a lot of ground in the city of Johnstown, formerly the property of one John Schonhart, and the doors and windows which were part of the dwelling house erected on said property. All of the defendants named in these three bills of indictment, as well as those named in two other bills to be hereafter mentioned, were tried together before the same jury, and on every bill there was rendered a verdict of guilty with a recommendation 'to the mercy of the court. At the conclusion of the trial the learned trial court was asked to direct a verdict in favor of the defendants, and his refusal to so instruct the jury constitutes one of the assignments of error.

The offenses described and prohibited by the statutes quoted are species of an offense long known as malicious mischief. This offense, whilst varying somewhat in its minor details owing to the different statutory enactments in different jurisdictions, has from the remotest times been individuated by certain peculiar attributes which must be shown to exist in every case in order to support a conviction. The definitions of it-adopted by standard text-writers, and indeed its name itself,clearly indicate that malidious intent towards the owner real or' constructive of the property injured must always be proven.Without such intent this particular offense does not and cannot exist. Hence it has ever been held that where the injurious act is done or committed in the exercise or enforcement of what the defendant honestly believes to be his legal right, even though such belief should be a mistaken one, there can be no conviction: Whart. Cr. Law, secs. 1065 and 1067; Bishop’s Cr. Law, secs. 298, 570 and 998; Com. v. Drass, 146 Pa. 55. This is but another application of the controlling principle so often announced in cases of larceny, namely, that the intent to steal is the very essence of the offense. If, therefore, one charged with the commission of malicious mischief may successfully defend by showing that the acts complained of, although they may have injured or destroyed the property of another, were done in the mistaken belief that the property was his own, a fortiori it must follow that his defense is complete if he actually shows by the undisputed testimony that his title to the property injured was unquestioned.

It is conceded in the present case that the defendants whose acts are complained of were the servants and employees of the Pennsylvania Railroad Company, acting under its authority. It is also agreed that long before the commission of these acts ' that company had regularly begun and completed condemnation proceedings to appropriate and take for public use the ground formerly belonging to the prosecutor, John Schonhart, upon which the fence and the building, of which the doors and windows mentioned in the indictment were parts, stood. The bond of the company, conditioned according to law, had been filed in the court of common pleas of Cambria county and approved without objection on December 28, 1904. Notwithstanding this fact the prosecutor had refused to surrender the possession of the property and continued to occupy it, in spite of a formal notice to vacate,'until June 7, 1905, when the de-' fendants, acting under the instructions of the company, went upon the property to clear away the obstructions so as to prepare it for use for railroad purposes.

We think there can be no doubt that, under our constitution and laws as frequently construed by our Supreme Court, the title of the former owner to the property, including the buildings and fence, was divested as soon as the bond was approved, and the right of the railroad company, in this respect exercising the powers of the state, to enter upon the property and prepare it for, and subject it to, the public use for which it had been condemned, was complete: Hoffman’s Appeal, 118 Pa. 512; Fries v. Southern Pennsylvania Railroad & Mining Co., 85 Pa. 73 ; Fischer v. Catawissa Railroad Co., 175 Pa. 554. It seems clear to us, therefore, that the commonwealth entirely failed to establish the all-important averment in the bills, to wit: that the property alleged to have been injured “ was then and there the property of John Schonhart,” and that failure ought to have resulted in the acquittal and discharge of the defendants charged with malicious mischief. We do not understand the court below to have in any way denied the principle that the title to this property for railroad purposes vested in the railroad company upon the approval of thé bond, and, as a necessary consequence, the servants, and employees of that company could not be convicted of malicious mischief by following its directions in removing or destroying it. But the court, through some inadvertence, went outside of the averments in the indictment and permitted the jury to consider the injury to carpets, etc., by the tearing down of plastered partitions and otherwise. Inasmuch as the bills of indictment were evidently drawn with care to meet the requirements of the statutes above quoted, we are satisfied that the offense of malicious mischief as charged in the bills of indictment was not made out against the defendants, and their request for binding instructions should have been granted.

The conviction of the remaining defendants in the two bills charging the offense of forcible entry on the same premises and under the same circumstances already adverted to, invites the consideration of a broad question'that, so far as we can discover, has not heretofore been presented to the appellate courts of this state. The law defining and punishing this offense was not designed primarily to protect an individual in the enjoyment of property in his possession, but rather to secure to the people generally the public peace and repose without which a civilized community cannot accomplish the ends for which government is instituted.

The enforcement of those laws which secure to all the people the rights necessary for their common well-being, which advance the public good, is therefore the paramount duty of a state; whilst the right of an individual to possess and enjoy even the property that is demonstrably his, must be secured and exercised in subordination to the higher public right, and only through those channels which the state provides. Hence a man may be properly convicted of the offense of forcible entry who violently and forcibly enters on property, indisputably his, to dispossess another who is in actual and quiet possession at the time, because he breaks or threatens a breach of the public peace; because he sets the private above the public right and inverts the order in which the law of the land has declared these rights must be regarded and enforced. But a sheriff, armed with a writ requiring him to dispossess one in the occupancy of lands or houses and put another in his stead, may summon to his aid, and actually use, as much force as is necessary to enable him to obey the mandate of his writ. When a municipality has lawfully ordained a new public street it becomes the duty of the proper executive officer to open that street by removing, from within its lines, everything that would embarrass or obstruct the enjoyment, by the public, of the new use to which the land has been subjected. In thus enforcing, not a private but the public right, he may lawfully use as much force as is necessary. The responsibility for the use of force in such cases is not upon the instrumentality thus executing the public law but upon him who defiantly and without right resists it.

When a public, or quasi public, corporation, to which the state has delegated its high prerogative of taking private property for public use, undertakes to exercise that right in the manner provided by our constitution and laws — and here we speak only of cases wherein the regularity and legality of the condemnation are unquestioned — the appropriation proceeding, strictly speaking, is at an end when its bond has been filed and approved. The act of approval is the final step of the proceeding by which the title of the former owner has been divested and the right of the public to the use and enjoyment of the property condemned has become complete. “ The security being given in due course of law the grasp of the owner upon his property is loosened by the constitution itself: ” Fries v. Railroad & Mining Company, 85 Pa. 73. The title of the former owner has therefore passed over, through a channel created by the constitution and laws, to the public. It is undoubtedly the duty of the former owner, as soon as his title has thus passed, that is to say as soon as his purchase money has been paid or lawfully secured by the filing and approval of a bond, to surrender the possession to the public or its duly constituted agent. If Ms willful refusal to discharge Ms duty in this respect renders an entry by force necessary to oust him, such entry is not the act of an individual to enforce a private right, but the act of the public to enforce a public right. In essence and substance such an entry is akin to those, already mentioned, made in execution of the judgment of a court or the enactment of a municipal legislature.

It follows, then, that they, who in contemplation of law are the proper persons to make such an entry, may lawfully use as much force as is necessary to accomplish the object of the law, which is, to prepare the property for the new public use to which it has been legally dedicated.

Whilst it is true that neither the constitution nor any statute has formally designated any agent to exercise such right of entry it must have been contemplated that it could and would be exercised by some agency when the necessity for it should arise. Otherwise the entire scheme, so carefully provided even in our fundamental law, for the summary taking of private property and subjecting it to public use as the public necessity or convenience may require, could be rendered wholly useless and ineffective by the obstinacy or viciousness of a single individual.

We regard the reasoning here adopted and the conclusion to which it leads as nothing more than the logical development and application to the circumstances now before us, of the principle laid down by the Supreme Court in the case of Schuler v. Northern Liberties, etc., Railroad Company, 8 Whart. 555. The action there, it is true, was trespass. The railroad company was authorized by its charter to take private land for public use upon paying for the same, or in case of failure to agree with the owner, by paying into court the amount that would be properly assessed as damages. Having failed in that case- to agree with the owner, the company paid the damages into court. The owner then took a writ of certiorari and the company having entered upon his property he brought an action of trespass.

Mr. Justice Rogers, in the course of the opinion in that case, uses the following language: “ Where the directions of the act are pursued, the company is acquitted from all responsibility for any injury which maybe done. The legislature, while they guard the rights of the owner of the land through which the road passes, have thought proper to avoid, as far as practicable, any vexatious or unnecessary delay — a consideration of great importance in a work of this description, and which they would seem to have had specially in view in the charter granted to the company; and this, if not conceded, has been but faintly denied.”

The power to take possession of property which has beeu condemned for public use, is therefore an incident of the power to condemn, and as the law has not formally designated the agency through which it is to be exercised, every rational principle of construction impels us to conclude that it should be exercised by the corporation to which is given the expressly delegated power of condemnation. It is true such power may be abused; but so may that committed to a sheriff, burgess or other human agency. But with the abuse of power comes liability, civil or criminal, or both. With this, however, we are not called upon to deal in the cases now before us, because the indictments do not aver nor does the evidence disclose any willful or wanton abuse of power. No actual violence was done or threatened to anyone. The force gathered, if collected to enforce a private right of entry, would have been a menace to the public peace and might have warranted the conviction of the defendants. But assembled, as it was, to clear the property of permanent buildings that obstructed and prevented its public use, it was stripped of its otherwise dangerous feature. Indeed, we cannot understand the verdicts rendered otherwise than as findings that the defendants, although technically guilty of the offenses as defined by the learned trial court, had abstained from all acts indicating a willful or wanton disregard of the rights of the general public or the prosecutor. Upon a general review of the entire evidence and the principles of law applicable thereto, as we have endeavored to define them, we are of the opinion-that the commonwealth failed, in all the cases, to make out the offenses charged in the sevei’al indictments and the points craving binding instructions in favor of the defendants should have been affirmed.

Judgment reversed and the defendants are now discharged without day. The costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Hbndekson, J.,

license: Public Domain

text:
    Glasse v. Stewart, Appellant.

      Vendor and vendee — Contract—Breach—Measure of damages.

    If a vendor of land makes default without fraud the vendee is only-entitled to recover the price paid, together with the expenses incurred on faith of the contract. This rule applies both to written and parol contracts.
    Where a plaintiff seeks to recover'a larger measure of damages for a breach of an agreement to sell land, it is necessary that he make it appear from the evidence that the defendant practiced fraud, artifice or collusion; and this must have inhered in the original agreement. Until some evidence is introduced tending to show fraud on the part of the defendant, he is not called upon to give any reasons for his conduct. The mere refusal to convey is not evidence of fraud.
    Where on an appeal from a judgment in favor of the plaintiff in an action for a breach of a contract for the sale of land, it appears that there was no evidence of fraud on the part of the vendor, and it also appears that there was no dispute in regard to the hand money paid, and there is no evidence as to other expenses incurred, the appellate court will not reverse the judgment, but will amend and reduce it so as to make the amount of the judgment the amount of the hand money, and so amended will affirm the judgment.
    Argued Oct. 9, 1906.
    Appeal, No. 96, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1905, No. 4,120, on verdict for plaintiff in case of Josephine Glasse v. Hugh Stewart.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Modified and affirmed.
    Assumpsit for breach of contract for the sale of land. Before Willson, P. J.
    Defendant presented the following points :
    1. If you believe the plaintiff has a right to recover, then she is limited in damages under the pleadings in this case to the $20.00 paid at the signing of the agreement for sale, with interest from the date, viz.: April 20, 1905. Answer : I decline that point. [5]
    2. The value of the bargain, or in other words what profit the plaintiff might have made had the contract been consummated, is not the measure of damages. Answer: I decline that point. [6]
    February 25, 1907:
    3. You should not consider any profits the plaintiff might have made had the contract been consummated. Answer: I answer that in this way, that you have no right to consider in estimating damages the profits which the plaintiff might have made in the transaction, as profit. The only thing you could consider would be what advantage the plaintiff might have derived if the bargain had been carried out, by reason of the property being worth more in the market than the price which she agreed to pay. [7]
    Verdict and judgment for plaintiff for $250. Defendant appealed.

      Errors assigned were (5-7) above instructions, quoting them.

      Morton Z. Paul, with him Crawford £ Loughlin, for appellant.
    — The measure of damages in this state on a broken covenant for title, where there has been no fraud, is the proportion of purchase moneyTost by failure of title, with interest thereon from the date of the deed: Doyle v. Brundred, 189 Pa. 113; Stephens v. Barnes, 30 Pa. Superior Ct. 127.
    The plaintiff’s statement in the case at bar has not-one word in it alleging fraud, nor was fraud proved on the trial. It follows, therefore, under the authorities in this case, the court erred in all his answers to the defendant’s points: Burk v. Serrill, 80 Pa. 413.
    On default by the vendor without fraud the vendee may recover for expenses necessarily or properly incurred on the faith of the contract, with the consideration paid : Eberz v. Heisler, 12 Pa. Superior Ct. 388; Haverstick v. Erie Gas Co., 29. Pa. 254.

      Ernest Loweugrund, with him J-. II. Shoemaker, for appellee,
    cited: McClowry v. Croghan, 31 Pa. 22; Bartram v. Hering, 18 Pa. Superior Ct. 395; Fitzpatrick v. Engard, 175 Pa. 393; Erwin v. Myers, 46 Pa. 96.
   Opinion by

Hbndekson, J.,

The plaintiff’s action is for damages for breach of a written contract to convey real estate. The defendant gave to the plaintiff the following memorandum :

“ Phila., April 20, 1905. Received of Mrs. Josephine Glasse $20.00 as a deposit in payment of house No. 704 S. 19th Street, price of house to be $2,400, clear of any encumbrance, insurance included, settlement to be made within two weeks.
“HuC-h Stewart.”

It is admitted that the defendant declined to convey the property on request and the material question raised by the assignments of error is, what is the measure of damages ? The rule is well established that if the vendor make default without fraud the vendee is only entitled to recover the price paid, together with the expenses incurred on the faith of the contract: Dumars v. Miller, 34 Pa. 319; McNair v. Compton, 35 Pa. 23; Rineer v. Collins, 156 Pa. 342; Doyle v. Brundred, 189 Pa. 113; Eberz v. Heisler, 12 Pa. Superior Ct. 388; Stephens v. Barnes, 30 Pa. Superior Ct. 127. This rule applies both to written and parol contracts: Bowser v. Cessna, 62 Pa. 148; Dumars v. Miller, 34 Pa. 319. The application of the rule to the two classes of contracts rests upon different principles but with equal conclusiveness. Where a plaintiff seeks to recover a larger measure of damages it is necessary that he make it appear from the evidence that the defendant practiced fraud, artifice or collusion. And this must have inhered in the original agreement: McNair v. Compton, 35 Pa. 23; Rineer v. Collins, 156 Pa. 342. Fraud is not presumed. It must be established by sufficient evidence. The burden of proof is, therefore, on the plaintiff to show the fraudulent conduct which entitles him to the value of his bargain. We do not find in the evidence brought up with the record anything from which an inference of fraud could be legitimately drawn. The defendant’s explanation of his refusal to deliver a deed was that there was a mistake in regard to the property to be conveyed; that the property had been derived from his father and was subject to a ground rent; that he understood the subject of the contract was the house and that upon learning that the plaintiff claimed to have bought the whole property he promptly notified her of the misunderstanding; notwithstanding which the plaintiff insisted upon a conveyance of the lot with the house. This may not have affected the extent or validity of the agreement, but it is some indication of good faith. We are not considering the question whether the contract is invalid because of a mistake, but what is the true measure of damages considering the contract to be in force. And from this point of view the defendant’s explanation is pertinent. We do not mean to say that an explanation was necessary, for the mere refusal of the defendant to convey is not evidence of fraud: Rineer v. Collins, 156 Pa. 342. Until, therefore, some evidence was introduced tending to show fraud on the part' of the defendant he was not called upon to give any reasons for his conduct. There is no other fact from which fraud might be inferred. The suggestion in the appellant’s argument that the defendant had learned that a higher price could be obtained for the property is not supported by any evidence. It follows that the fifth, sixth and seventh assignments of error should be sustained. The plaintiff did not take possession of the property, nor does it appear from the evidence that she expended any money on account of it, except the hand money paid at the time the contract was delivered. She was, therefore only entitled to recover $20.00, with interest thereon from April 20, 1905. In view of the conclusion reached it is unnecessary to consider the other assignments of error.

As there is no dispute in regard to the amount of money paid it is unnecessary to reverse the judgment. Under the authority vested in this court by the 9th section of the act of June 24, 1905, the judgment is so amended that it shall be a judgment in favor of the plaintiff for $20.00, with interest from April" 20, 1905; and as thus amended the judgment is affirmed.


author: Henderson, J.,

text:
    Commonwealth, Appellant, v. Straus.

      Quo warranto — Title of office — Corporations.
    The second section of the Act of June 14, 1836, P. L. 621 makes the writ of quo warranto the appropriate remedy when any question arises concerning the exercise of an office in any corporation created by authority of law and having its chief place of business within the county. It is the specific statutory method of determining the right of one claiming to exercise an office in such corporation so to do.
    The eighth section of the Act of April 29, 1874, P. L. 73, was not intended to repeal or be a substitute for any of the provisions of the Act of June 14, 1836, P. L. 621. It is therefore not necessary in order to obtain a writ of quo warranto to test the title to office in a corporation of a person alleged to have been illegally elected that five stockholders imite in the petition. The object of the act of 1874, was wholly to set aside an invalid election. The act of 1836, was intended merely to provide a method by which title to an office may be inquired into through a writ of quo warranto such as might be issued at the suggestion of a single individual.
    Argued Oct. 16, 1906.
    Appeal, No. 29, Oct. T., 1906, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1905, No. 2,208, making absolute rule to quash writ of quo warranto in case of Commonwealth ex rel. William J. Chamberlain v. Joseph E. Straus, H. R. Robbins and George Bucher.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for quo warranto.
    The material averments of the petition are stated in the opinion of the Superior Court.
    The court made absolute rule to quash the writ of quo warranto.

      Error assigned was the order of the court.

      Edmund W. Kirby, with him Robert J. Byron, for appellant.
    —The courts have held that the only proper method of testing the validity of corporate election is by writ of quo warranto: Jenkins v. Baxter, 160 Pa. 199; O’Shea v. Flannery, 10 Pa. Dist. Rep. 356; Nolde’s Appeal, 2 Monaghan, 169; Fire Association v. Benseman, 4 W. N. C. 1.
    February 25, 1907 :
    The right of the private relator to issue the writ of quo warranto has been affirmed in Commonwealth v. McCarter, 98 Pa. 607; Commonwealth v. Stevens, 168 Pa. 582.

      Paul Reilly, with him Jas. Aylward Develin, for appellee.
   Opinion by

Henderson, J.,

The seeondsection of the act of June 14, 1836 P. L. 621 makes the writ of quo warranto the appropriate remedy when any question arises concerning the exercise of an office in any corporation created by authority of law and having its chief place of business within the county. It is the specific statutory method of determining the right of one claiming to exercise an office in such corporation so to do : Jenkins v. Baxter, 160 Pa. 199. The propriety of granting the writ is within the sound discretion of the court and it may be allowed at the instance of a private relator: Gilroy v. Com., 105 Pa. 484; Com. v. Stevens, 168 Pa. 582. The suggestion filed in the court below by the appellant impeached the title to office of the appellees who claimed to be president, vice president and director, respectively, of the corporation, the allegation of the relator being that they were elected directors at an election illegally held in that the third section of article 1 of the by-laws of the corporation was not complied with, which provided that “The election shall be conducted by two judges, whether stockholders or not, duly qualified according to law, who shall be appointed by the board of directors. If such judges disagree, a third shall be appointed who when qualified shall act with them,” and that afterward as directors they elected J. George Bucher to the offices of president and secretary, and Joseph E. Straus to the offices of vice president and treasurer. Upon the return of the writ a rule was had to quash the writ as to Joseph E. Straus which rule was made absolute. The justification of this action is said to exist in the 8th section of the General Corporation Act of April 29, 1874, P. L. 73, which provides, among other things, that “if any election, as aforesaid, be held without the person holding the same having first taken an oath or affirmation, as aforesaid, or be invalid for any other reason, such election shall be set aside in the manner now provided by law, and a new election ordered by the court of common pleas of the proper county, upon the petition of not less than five stockholders supported by proof satisfactory to said Court.” This act provides a method by which an invalid election may be wholly set aside and a new election ordered. The proceeding contemplates a new election in such cases and where such election is sought the action must be initiated by at least five stockholders. This is very different, however, from the trial of the title to office of an individual claiming to be an officer of a corporation. • A successful action under the act of 1874 sets aside the election and all done thereunder. It affords a summary means not of vacating offices illegally occupied, but of setting aside elections illegally cohducted. The object aimed at is not the particular office but the election. The act of 1836 only operates upon the person or persons whose right to office is questioned. It provides a complete method by which the title to an office may be inquired into through a writ of quo warranto. This may be issued at the suggestion of a single individual, as is shown by many cases, and it may be directed against one or more persons alleged to be exercising corporate office or offices illegally. The effect of a judgment thereunder in favor of the relator .is to oust the respondent from office, not necessarily to declare the whole election void. Its result is not to bring about a new election, but to place or leave in office him who has shown a right thereto. We are unable to conclude from the terms of the 8th section of the act of 1874 that it was intended to repeal or be a substitute for any of the provisions of the act of 1836. It follows, therefore, that it is not necessary in order to obtain a writ of quo warranto to test the title to office in a corporation of the person alleged to have been illegally elected that five stockholders unite in the petition. It is contended that the remedy of the relator is by mandamus and not by quo warranto. There are cases where the writ of mandamus has been resorted to, to prevent the exclusion of the complainant from office. They are cases where there was no question as to the relator’s original title to the place but where one without right undertook to oust him. In such a case the court will prevent an intruder from excluding the rightful occupant. Com. ex-rel. v. Gibbons et al., 196 Pa. 97 relied upon by the appellee arose under the common school law of 1854. It turned not on the title of the alleged successor of the relator, but on the question whether the latter had been lawfully removed in accordance with the provisions of the 8th section of the act of 1854. The relator was conceded to have been lawfully in office ; there was no vacancy to be filled and the mandamus commanded the respondents to recognize Iris right. The case is not inconsistent with Jenkins v. Baxter, 160 Pa. 199 ; O’Shea v. Flannery, 10 Pa. Dist. Reps. 356, and many other cases in which the function of the writ of quo warranto is explained.

The judgment is reversed, the writ of quo warranto reinstated and a procedendo awarded.


author: Orlady, J.,

text:
    Bernstein v. Walsh, Appellant.

      Malicious prosecution — Wrongful arrest — Charge of court.

    In an action for malicious prosecution a judgment and verdict for plaintiff will be sustained, where it appears that the plaintiff was arrested in another state by the defendant personally at the point of a pistol, was detained in prison in that state for two weeks, was subsequently brought to Pennsylvania on a requisition, and at his trial was acquitted under binding instructions by the court on account of meagre and unreliable character of the evidence.
    It is not error for a judge in his charge to the jury, to express his opinion on the facts, if done fairly.
    Argued Ocfc. 17, 1906.
    Appeal, No. 135, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., March Term, 1904, No. 335, on verdict for plaintiff in case of Myer N. Bernstein v. John F. Walsh.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Trespass for malicious prosecution. Before Wiltbank, J.
    The court charged as follows:
    [It is difficult to treat this case without reaching the conclusion that the defendant, Mr. Walsh, is under certain cireumstances a dangerous citizen.] [3] It seems, however, that he may be quite free from any imputation, inasmuch as [I am obliged to leave to you the decision of the point in issue, and you may find that he has not committed any offense under the law, but I say it is difficult to believe that any man in his senses would so find.] [4] He was engaged in keeping rooms for pool games, as you have heard. He had several places, and among others he had one which has been more particularly mentioned here on Eighth street in this city, in which, at the time of the -events that have been narrated to you, the plaintiff Bernstein was engaged. Bernstein had been with him about a week it would seem, although the ascertainment of the facts is entirely for you, and at the end of the week he left his employment. Mr. Walsh was on that day absent from the city, but he had left instructions with another clerk to so keep the place that he might get in when he arrived here, late at night or at any time during the evening. That clerk was Mr. Stevenson, and Mr. Stevenson was in the place up to quite a late hour, and he had, as he says, deposited in the safe moneys which had been collected in that room that day, and also which had been brought in from other rooms kept by the defendant in other parts of the town. When Walsh arrived he found that there was no money in the safe. It was under his instruction apparently that the safe had not been locked. Mr. Stevenson testified that he never locked it, he never adjusted the combination, although when he closed the door he turned the handle. The fact that the safe was not locked is not evi.dence' that it had been opened by somebody after Stevenson had deposited moneys there. It was Stevenson himself who left it unlocked, according to the proofs adduced here on the part of the defendant.
    Finding his money not there, Mr. Walsh proceeded to make an investigation, and be ascertained in somejway that it would be likely that if he went on to New York he might find somebody there who had something to do with the matter. Whether he suspected Frank, or suspected Bernstein, or both of them, or those two and others, or one of those two and others, we cannot say, but he had a suspicion that they had some connection with the loss of that money, if there was any money lost. He went to a pool room in New York City on Sunday afternoon, and he found Bernstein and Frank there playing pool. According to the story of Bernstein, corroborated by Frank, he pointed a pistol and said that they must come out, they were under arrest. According to his story he had the pistol in his pocket, and he has stated to you the make and the caliber, but he did not draw it out, he simply made a motion as it were, by which an intelligent observer might conclude that there was a pistol somewhere about his person, and it evidently was Mr. Walsh’s design, taking his narrative.at its full value, to avail himself of the importance of the possession of the pistol if those gentlemen would not obey him otherwise, and it has been said that on the trial in the court of quarter sessions he stated that he did draw the pistol on them. He denies that he drew the pistol on them under any circumstances, and also denies that in the trial in the court of quarter sessions he said that he did. Therefore you must determine which version of that part of the story is true. However this may be, Bernstein and Frank did go out of that pool room with him. He carried them off to some station, and preferred a charge against them, and they were taken from there, after spending a night, as I recall it, in the station house, to another station, and there they were given a hearing, and then they were committed to the tombs to await what have been called extradition papers. Then they were brought on to this city under circumstances which you will recall, and which are not disputed, and then there was the trial.
    The peculiar features of the prosecution of Mr. Walsh’s claim against Mr. Bernstein were, as you will observe, his entry into that pool room with a concealed deadly weapon, the use of which, perhaps, he might have recourse to, and as to which whether he used it or not you are to determine, part of the proofs and quite a substantial part going to show that he did use it, and another part, and that you must give weight to, going to show that he did not. He made what he calls the arrest of these people, as you observe, without a warrant, and thus interfered with the liberty of the citizens in a manner which was wholly without justification. A citizen has no right to arrest another citizen in such a manner, and whether or not he had a pistol which aided him in consummating his arrest, the arrest itself was illegal. Carrying them before the magistrate, or police officer, or whoever it may have been, and so acting there as to lead to their commitment and imprisonment for that night, was without justification unless he there testified to circumstances which warranted the officers of the law in New York in committing these men. We have no evidence that he did or did not do this. He was there, and Mr. Bernstein has said that he directed that he, Bernstein, be searched, and Frank has said that he directed that he, Frank, be searched, but Mr. Walsh has said that he did not give those directions at all, and, of course, you will determine that issue of fact as you go along. [The imprisonment in New York presents features that must, of course, create surprise in the mind of anybody who is required to observe such conduct. How it could be that the officials there, under the circumstances shown, would show themselves right in putting Bernstein into prison as they did, it is difficult to see. No record has been produced which justifies the action, and the only salient fact we have is that it was due to the representations of Mr. Walsh of the alleged guilt of Bernstein.] [5] Then again, as a consequence, and here we come to a circumstance which is not disputed, after having been put into what they call the tombs, the municipal prison there, the plaintiff was kept waiting until extradition' papers were procured here, and he was thereafter brought to 'P hiladephia. [He was brought to Philadelphia under circumstances of peculiar degradation. He could not have been subjected to greater humiliation for any crime that he could have committed. He was handcuffed to his companion, taken from the tombs by various methods of conveyance, a trolley car, locomotion afoot, and so on, across on the ferryboat, put into a train, and brought on here, as I say, thus linked to another man, and bearing all the evidences necessary to the judgment of a sensible person that' he had been guilty of some heinous crime. I am not aware, although it may be, that any other method of bringing over a murderer is in use by the authorities. The transportation of the plaintiff here under the circumstances I have indicated must necessarily cause astonishment in the mind of the hearer.] [6]
    When he got here he was put in jail. Then he was called to the court of quarter sessions, and then it turned out that he had not been guilty of any offense at all. He was not guilty of larceny, and was not guilty of receiving stolen goods, and his counsel very properly said to you that under the circumstances he could not have been found guilty on the evidence adduced. There was no evidence which would have justified that verdict. Having gone free, after the experience which has been narrated to you, but which, however, you are to ascertain by examining the proofs and using your judgment as to their significance after you have determined the credibility of the witnesses, he brings this action to recover from Mr. Walsh compensation for the prosecution. If this prosecution was without probable cause, then it was in a spirit of what the law calls malice, and if you find from the facts according to the contention of plaintiff’s counsel, the plaintiff will be entitled to a verdict. Consider, therefore, was there probable cause ? Have you before you any evidence whatever that the defendant Walsh, as a reasonable, prudent, law-abiding citizen, could justify his conduct by referring to any incident in the case ? Had he any probable cause for directing that train of events which I have briefly alluded to? You will, of course, bear in mind that Bernstein had been in his employment. You will bear in mind that he missed the money, and apart from these circumstances you will find no affirmative evidence of iflaintiff’s having taken Walsh’s money and run away with it, but is there any evidence to justify a suspicion that he had ? If you find any evidence and therefrom deduce facts which justify a reasonable suspicion on the part of a prudent, law-abiding citizen, that Bernstein had stolen his money, then you will find that there was cause for his proceeding against the man. [But his proceeding, even under those circumstances, must have been according to law, and if you find that in availing himself of the process of the law upon what you regard as probable cause, he exceeded his rights under the law,'then still there does remain a feature of abuse of his right as a citizen to cause the arrest of another, which, taken in connection with the ascertainment by a jury in the court of quarter sessions that the plaintiff was wholly innocent, would justify your disregarding what evidence you had or what conclusion you had reachéd of probable cause, because, apart from a question as to malice under the law in the absence of probable cause, here would appear an element of malice independent of and beyond tlie influence and scope of the probable cause that you found.] [7] This may sound rather academic in putting it to you in this way, but I think you will understand the point as I desire to offer it to your consideration.’ If you find according to the contention of the defendant, then you must ■ find a verdict for the defendant. If, on the other hand, you find according to the contention of the plaintiff under my instruction as to the significance of the proofs, then you will find a verdict for the plaintiff.
    The measure of damages will be compensation of two kinds, assuming that you find a verdict for the plaintiff, actual compensation for his actual loss, and in addition to that compensation for the indignity, the outrage and offensive treatment, if any, which you find him to have been subjected to by the defendant. [Under the circumstances, should you find a verdict for the plaintiff, it would be right, if you find also that the circumstances justify it, that you should impose punitive damages upon the defendant, because not only would you find that the plaintiff had suffered actual loss, but you would find that the defendant had been guilty of circumstances of excess and of abuse of power as against this plaintiff, for which he should stand fined, as it were, or mulcted in damages.] [8]
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were (3-8) above instructions, quoting them.

      E. Spencer Miller, for appellant.
    — Arrest of a fugitive from justice, is lawful, in advance of a requisition, on crime committed in another state: Com. v. Deacon, 10 Serg. & Rawle, 125; 2 Moore on Extradition, sec. 591, citing many cases.
    For such arrest, the general principles of arrest apply, including, in case of felony, the action of a private citizen : State v. Anderson, 1 Hill (S. C.), 327, apparently approved in 2 Moore on Extradition, sec. 594. The law is similarly declared in 19 Cyc. of Law, 96.

      Henry M. Bulls, with him Maxwell Stevenson, for appellee,
    cited Burk v. Howley, 179 Pa. 539.

      February 25, 1907:
   Opinion by

Orlady, J.,

The plaintiff: recovered a verdict of $500 in this action of trespass for malicious prosecution, and the assignments of error upon which the -appellant relies are directed at the charge of the court, which it is earnestly contended was unfair and inadequate, because it impressed a one-sided view of the case upon the jury, one unfavorable to the defendant, as well as cast having discredit on certain circumstances which tended in his favor.

Viewing the appellant’s conduct in its most favorable light, he acted upon a state of facts, which affected with equal pertinence at least three persons and rose no higher than a mere suspicion; with this uncertain foundation he persisted in his original error by instituting and conducting a course of events without any possible warrant in law. The verdict was fully warranted by the appellant’s own testimony. He did not resort to legal procedure to prosecute a suspected person, but made the law of his case to suit himself. He went outside the jurisdiction of our courts, and at the point of a revolver apprehended the plaintiff, and had him confined in a prison as a thief for about two weeks, until he secured formal requisition papers to have him transferred to Philadelphia for trial. When the cause was formally tried in the quarter sessions under an indictment charging the present plaintiff with larceny, the evidence was so meager and unreliable that the trial judge directed the jury to return a verdict of not guilty. The appellant’s testimony in this record is so contradictory, and the facts he alleged in extenuation of his conduct, so unreliable, that the trial judge was clearly within the bounds of reasonable speech in saying to the jury: “ It is difficult to treat this case without reaching the conclusion that this defendant, Mr. Wash, is under certain circumstances a dangerous citizen. . . . The plaintiff was brought to Philadelphia under circumstances of peculiar degradation. . . . He could not have been subjected to greater humiliation for any crime that he could have committed.”

On the trial below the defendant’s side of the case was presented by able counsel; and his point for instruction, which fairly exhibited his view of the law applicable to the facts, viz: “If the jury find that Walsh had reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing that Bernstein was guilty of the crime charged, they must find for the defendant,” was affirmed by the court without any qualification. The plaintiff’s contention was corroborated by other witnesses as to the main features of the case, and however disastrous it may be for the defendant there was no other side for consideration by the jury. The plaintiff’s disregard of> duty in leaving his employer without giving him a reasonable notice of his intention so to do, and which made his conduct at least suspicious, was doubtless the main cause for the light verdict he recovered.

As held in Mihalyik v. Klein, 22 Pa. Superior Ct. 193, the arrest and subsequent imprisonment of the plaintiff were an unwarranted abuse of legal process, and a trespass pure and simple for which this defendant is liable; and the court was fully justified in its definition of the measure of damages. It is well settled that it is not error for a judge in his charge to the jury, to express his opinion upon the facts, if done fairly; in some eases it might be bis duty to do so, provided he does not give binding instructions or interfere with the province of the jury: Commonwealth v. Johnson, 133 Pa. 293; Commonwealth v. Warner, 13 Pa. Superior Ct. 461.

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


text:
    Corkran, Appellant, v. Patterson.

      Affidavit of defense — Practice, C. P. — Fraud.
    In an action against two persons formerly partners for commission on sales alleged to have been earned by the plaintiff as a salesman before the dissolution of the partnership, an affidavit of defense is sufficient which avers that the retiring partner had started a -rival and similar business, and had secured the plaintiff as a salesman, that the suit had been brought by agreement and in collusion with the retiring partner, so as to make the continuing partner.individually liable, that plaintiff was paid in full to the time of the dissolution of the old firm upon a schedule made with plaintiff’s knowledge, that by collusion between plaintiff and the retiring partner, the defendant was induced to pay the plaintiff commissions on sales made after the dissolution of the firm, and that the retiring partner had filed a separate affidavit of defense agreeing that the plaintiff’s claim was correct.
    Argued Oct. 18, 1906.
    Appeal, No. 137, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1904, No. 1,091, refusing to make absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel Corkran v. James B. Patterson and Herman L. Hohlfeld, trading as Patterson & Hohlfeld Manufacturing Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover commissions on sale.
    The affidavit of defense of Herman L. Hohlfeld was as follows:
    It is true that this deponent was a member of the firm of the Patterson and Hohlfeld Manufacturing Company up to August 1, 1904, at which time the firm was dissolved, the said James B. Patterson having previous to that time arranged to start a new business in competition with the said Herman L. Hohlfeld and in violation of the articles of partnership between the said James B. Patterson and this deponent the said James B. Patterson rented premises, put in machinery and started a business and arranged to engage the plaintiff, Samuel Corkran in the same capacity in which he was then engaged by the firm of the Patterson and Hohlfeld Manufacturing Company.
    That at the time of the dissolution, the said James B. Patterson, who had had charge of the accounts with the plaintiff Samuel Corkran, gave the amounts of his sales and commissions thereon to an expert accountant engaged by this deponent, which the said Patterson informed the expert accountant was all of the amount due or that would become due to the said Samuel Corkran at the time of the dissolution on August 1, 1904. That upon these figures settlement was made with the said Samuel Corkran and the whole of the commissions to which he was entitled according to these papers was paid him. That the said Samuel Corkran, the plaintiff, was an arbitrator selected by the said James B. Patterson-to settle the differences in dispute under the articles of partnership at the time of the said dissolution between the said James B. Patterson and this deponent and was familiar with all the facts relating to the settlement and said nothing to this deponent about any other amount being due him before the settlement of the said partnership affairs in which this deponent paid to the said Patterson the sum of upwards of $45,000. Not only was the said Samuel Corkran an arbitrator representing the said James B. Patterson, but he was also at the same time a salesman for the said James B. Patterson and in his employ, and he knew that this deponent was endeavoring to get all the indebtedness of the firm so that he could make- a definitive settlement with his partner, the said James B. Patterson, and that knowing all this the said Samuel Corkran never suggested in any way that he had an additional claim against the'firm of the Patterson and Hohlfeld Manufacturing Company until this deponent had made a settlement with the said James B. Patterson. He'then stated to this deponent that his contract with the old firm ran to the end of August, 1904, and demanded .from this deponent the commissions on sales made during the month of August, 1904. Believing the statement of the said Samuel Corkran this deponent paid him on September 6,1904, $20.61 for commissions during the month of August, 1904. Now, by the statement filed in this ease he finds that the said Samuel Corkran only claims his contract to have been to August 1, 1904. He therefore says that this sum of $20.61 was fraudulently obtained from him and should be returned to this deponent.
    This deponent is informed, believes and expects to be able to prove that the plaintiff is not entitled to any further amount of commissions and he is not entitled to commissions on any of the sales for which he brings suit, and he is informed by counsel that inasmuch as he, the said Samuel Corkran, knew of the settlement between the two partners, was an arbitrator representing the said James B. Patterson in the settlement between the partners, and did not make any claim for any further commissions until after the settlement had been made by this deponent with the said James B. Patterson, that he cannot now recover.
    This deponent further avers that he is informed, believes, and expects td be able to prove that this suit has been brought by the said Samuel Corkran by agreement and in collusion with the said James B. Patterson for the purpose of injuring this deponent in the business which he purchased from the said James B. Patterson.
    February 25, 1907 :
    This deponent avers that he is not indebted to the plaintiff in any sum whatever, but on the contrary he overs that the plaintiff is indebted to him in the sum of 120.61 paid to him, the said Samuel Corkran, by this deponent upon the fraudulent statement that he was entitled to commissions for goods during the month of August, 1904, and he will ask for a certificate for the return of this money to him upon the trial of this cause.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Wayne P. Rambo, for appellant.

      Weaver $ Drake, for appellee.
   Opinion by

Orlady, J.,

In this case the court below discharged a rule for judgment for want of a sufficient affidavit of defense, and also one for that part of the plaintiff’s claim as to which the affidavit was alleged to be insufficient.

The defendants were copartners as manufacturers of hammocks, etc., until August 1, 1904, when the firm was dissolved by Hohlfeld purchasing the interest of Patterson and continuing the same business. Patterson started a rival and similar business and secured the plaintiff in the same capacity in which he had acted for the old firm,- — that of a traveling salesman. This claim is for commissions, on sales made for the old firm, and Patterson in his separate affidavit of defense agrees that the plaintiff’s claim is correct. With this admission of record since February, 1905, the plaintiff has not made any move for judgment against him. Hohlfeld avers that this suit has been brought by agreement and in collusion with Patterson, so as to make him individually liable, and that Corkran was paid in full to the time of the dissolution of the old firm upon a schedule and statement made with Corkran’s knowledge to adjust the rights and liabilities of the parties. That by collusion between Corkran and Patterson, Hohlfeld was induced to pay to the plaintiff commissions on sales made after the dissolution of the firm. The defendant Hohlfeld avers that he is not indebted to the plaintiff in any sum whatsoever, and while the affidavit is not so specific in some respects as it should have been, the alleged combination of the plaintiff with the other defendant to secure a judgment against Hohlfeld, taken in connection with the facts that are sufficiently set out, fully justified the court in declining to make either of the rules absolute.

The judgment is affirmed.


text:
    Swing v. Bates Machine Company, Appellant.

      Contract — Performance—Substantial performance — Defective work.

    In an action on a contract where a substantial performance has been shown, the plaintiff may recover subject to deduction for defective work. In such a case it is error for the court to refuse to permit the defendant to show the amount of such deduction, merely because the defendant set up as a defense that he had not made the contract with the plaintiff. Two defenses were open: one that the contract was not executed as claimed by the plaintiff; the other that the plaintiff had failed to perform according to the contract. The plaintiff could only recover by showing that the defendant contracted. If the contract was shown to exist the defendant was bound to pay, but only according to the terms of the agreement, and if that was not carried out by Ihe plaintiff the defendant was entitled to show such failure of performance.

      Principal and agent — Evidence—Foreign corporation — Evidence.
    In an action against a foreign corporation which was a manufacturer of engines, to recover a balance alleged to be due on a contract for piping, the defendant averred that the contract was made by a selling agent, and that it was not within the scope of such agent’s authority. There was evidence that the agent in question was the defendant’s registered agent in Pennsylvania, and there was some evidence that he was held out to be the commercial agent. His name appeared on letter-heads as the manager of the defendant’s eastern sales department. The letter-head showed that the defendant was a manufacturer of high grade heavy duty Corliss engines and boilers. The agent made the affidavit of defense in the suit. Held, that the question- of the extent of the agency was for the jury.

      Argued Oct. 11, 1906.
    Appeal, No. 111, Oct. T., 1906, by-defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1903, No. 1,133, on verdict for plaintiff in case of Thomas C. Swing, trading as Swing & Bateman, v. Bates Machine Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Assumpsit for balance alleged to be due on a contract. Before Barratt, J.
    In addition to the facts stated in the opinion of the Superior Court it appeared that the contract in question was for furnishing and erecting all the steam, exhaust, feed and drip-piping for the complete piping system in the power house of the Hampton Roads Railway and Electric Co. at Hampton, Va., for the net sum of $2,905.
    The court charged in part as follows:
    [The plaintiff claims that his firm completed the work in accordance with the contract, and to the satisfaction of the defendant, and that the defendant paid him $1,007 on account, leaving a balance due of $451, with interest from February 4, 1903. If this was all there was in the ease and you found the plaintiff made the contract and performed it, your duty would merely be to find a verdict for the plaintiff for the amount of his claim.] [7]
    [Was this contract for additional piping to change from the jet condenser system to the surface condenser system, in connection with the Bates Machine Company engine, within the scope of the business with which Sciple was intrusted by the Bates Machine Company? That is a question you must ask yourselves. If it was, he might make the contract; if it was not, he could make no valid contract of that kind.] [8]
    [You must also pass upon this question: Did the Bates Machine Company register Sciple as its agent for the transaction of its business in Pennsylvania and hold him out to the world as its agent, and then privately limit his authority to merely selling engines? You have heard all the testimony and you must base your conclusions upon it. I say to you, however, as matter of law, that when one deals with an agent, in ignorance of limitations placed upon his authority, as the plaintiff alleges lie did in this case, he is not bound by them.] [9]

      [I have left to you for determination the question of fact as to whether Sciple authorized his clerk to sign the contract, but I am not entirely clear as to the question of law involved, which is, that even if the registered agent of a foreign corporation has power to make contracts, whether he can delegate that power to his clerk in the absence of express authority from his principal. For the purposes of this case, however, I instruct you, as matter of law, that if you find he did instruct his clerk to sign contracts, he had the power to do so. If I am wrong about this it can be corrected hereafter.] [10]
    [The defendant has asked me to say that if you find the defendant made the contract and is liable to the plaintiff, the plaintiff is not entitled to the full amount of his claim, but that the sum of $226 should be deducted for defective work, or something of that sort, and charged against the Vandegrift Construction Company; that as to this $226 the defendant company has a defense. You will remember the evidence exactly as it was. This instruction I decline to give you, as, in my judgment, it is inconsistent with the defense made by the defendant in this case, which is that it did not make the contract with the plaintiff and owes him nothing.] [11]
    Verdict and judgment for plaintiff for $532.18. Defendant appealed.

      Errors assigned among others were (7-11) above instructions, quoting them.

      Wayne P. Rambo, with him Ormond Bambo, for appellant.—
    It is uncontradicted that Sciple individually had the contract for the construction of which the work in question is a part. He was a special agent, and the rule is that persons dealing with special agents must inquire into such agent’s authority in order to bind the principal: Lance v. Deacon, 15 Phila. 318 ; Rafferty v. Haldron, 81* Pa. 438.
    The authority of a selling agent has been recently considered by this court and his authority has been strictly construed. It has been decided that a selling agent has no authority to rescind a contract and accept a return of the goods : MangeWeimer Co. v. Worsham, 27 Pa. Superior Ct. 315.
    Even, if for the purpose of argument, it be conceded (which defendant does not concede) that defendant was liable upon the contract in suit, defendant is, nevertheless, entitled to the benefits of the defense set up thereto in the affidavit of defense and in the testimony.
    February 25, 1907:

      J. II. Brinton, for appellees.
    — In Snodgrass v. Gavit, 28 Pa. 221, where there was substantial performance, it was held that on the failure of the defendant to show the amount of damage resulting from a failure to comply with the contract no deduction would be allowed: Filbert v. Philadelphia, 181 Pa. 530.
    It is held in Parker v. Citizens’ Insurance Company, 129 Pa. 583, that the fact that a particular person was the agent of the company in making a settlement sought to be enforced may be proved by an affidavit of that person made during the progress of the litigation on behalf of the company to procure a continuance.
   Opinion by

Henderson, J.,

The principal question in this case was whether H. M. Sciple was the agent of the defendant or was held out by the latter to be its agent. The contract declared' upon purported to be made for the defendant by Sciple. The defendant is a foreign corporation and it was conceded at the trial that Sciple was its registered state agent in Pennsylvania. There was some evidence that he was held out to be the commercial agent also of the defendant. With the knowledge and consent of the defendant, which was a manufacturer of high grade, heavy duty Corliss engines and boilers, he was advertised by letterheads as the manager of its eastern sales department. A letterhead of the defendant offered in evidence gave notice that it dealt in Corliss engines, complete power plants and general machinery. One of the receipts given by the plaintiffs for $1,000 paid on the contract was to the Bates Machine Company on account of work at Hampton, Yirginia. Jones, who worked for Sciple, testified as follows with reference to the work at Hampton of which the plaintiff’s undertaking constituted a part:

“ Q. With the exception of those details to which you refer, the work had been completed there, had it? A. Yes, sir. Q. That is, both by Swing & Bateman and by the Bates Machine Company? A. Yes; except in so far as the plant, up to the time I severed my connection with Mr. Sciple, hadn’t been in operation under load.” The record also shows that Sciple filed the affidavit of defense for the defendant. It is contended that the authority shown was only that of a “ selling ” agent and that the contract declared upon was not within the scope of that authority. In view of the nature of the defendant’s business as indicated by the letter-heads it does not necessarily or logically follow that the work undertaken by the plaintiff might not be connected with the delivery of engines or other machinery by the defendant. It cannot be certainly said, therefore, that the contract in question was not within the range of the defendant’s operations. The evidence for the defense clearly shows a limitation of the powers of the agent, Sciple, and there is a direct denial that the company was engaged in business of the kind involved in the contract. These contradictions of the plaintiff were for the jury, and the instruction of the court and the answers to the defendant’s points with reference thereto were as favorable to the defendant as could have been desired. There was also evidence that the work undertaken had been finished, except as to some minor details. Jones testified that it had been completed exceptas to some faulty valves and perhaps the pipe covering. This tends to show that there was substantial performance of the contract, and under the authority of Snodgrass v. Gavit, 28 Pa. 221, and Filbert v. Philadelphia, 181 Pa. 530, it was the duty of the defendant to show the amount of deduction which should be made from the contract because of the plaintiff’s omission, there being no evidence of an intentional departure from the terms of the contract. The undertaking involved a considerable outlay in the construction of a power plant and the jury would have been warranted in concluding from the testimony of Jones that the incompleted or defective part was inconsiderable. The 11th assignment must be sustained. The defendant asked the court to say to the jury that if they found that the defendant made the contract and is liable to the plaintiff, the latter is not entitled to the full amount of his claim, but that the sum of $226 should be deducted for defective work, concerning which testimony was introduced by the defendant. This the court declined to do for the reason that such instruction would be inconsistent with the defense set up which was that it did not make the contract with the plaintiff. The court was of the opinion apparently that because the defendant denied that it made a contract it could not be permitted to show failure of performance by the plaintiff even if the jury should find that the contract was entered into. The very root of the plaintiff’s allegation was that a contract was made with the defendant and that the latter was liable for the contract price. Two defenses were open: one that the contract was not executed as claimed by the plaintiff; the other that the plaintiff had failed to perform according to the contract. The plaintiff could only recover by showing that the defendant contracted. ■ If the contract was shown to exist the defendant was bound to pay, but only according to the terms of the agreement, and if that was not carried out by the plaintiff the defendant was entitled to show such failure of performance. The 1st and 4th assignments relate to the rulings of the court on the admission of evidence and do not require attention in view of the reversal of the case. The admission of the statement of claim for the purpose of showing credits thereon did the defendant no harm, however. It was not admissible to support the plaintiff’s claim and need not have been offered by the plaintiff to show credits, as the defendant could have taken them as admitted by the plaintiff.

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


text:
    William P. Kelley Brick Company, Appellant, v. Clay Product Supply Company.

      Contracts — Entire and severable contracts — Intention—Rescission.
    The entirety of a contract depends on the intention of the parties, and not on the divisibility of the subject. The severable nature of the ■latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown.
    On October 10, 1903, the plaintiff and defendant entered into a "written contract for the purchase and sale of 302,000 paving blocks. The consideration to be paid was reached by applying the rate of $12.00 per M. to the number above stated. The place of delivery named in the contract was f. o. b. cars W. Pa. The clause governing shipments was “Please ship as follows: One carload at the earliest possible moment, the balance of 37,800 immediately following telegraphic instructions from us, and the remaining 264,600 beginning November 1 next, deliveries to be completed by December 1, 1903.” The terms of payment were “Terms net cash on the twentieth of each month for deliveries made in preceding month.” The seller agreed “to give guarantee-for proper wear for five years.” Held, that the contract was an entire one.
    An entire contract for future delivery of bricks provided that payments should be made on the twentieth of each month. After the contract had run for a time payment was not made on the twentieth of the month, but a check was received on the twenty-fourth. One of the intervening days was a Sunday. On the twenty-first a delivery was made, and when the check was received on the twenty-fourth, receipted bills were returned to the seller with a letter which contained no intimation of dissatisfaction, or of an intention to rescind. On the twenty-seventh, the seller notified the purchaser that he rescinded the contract. Held, that the notice of rescission was ineffectual.
    Argued Oct. 12, 1906.
    Appeal, No. 88, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 1,785, refusing to take off nonsuit in case of the William P. Kelley Brick Company v. Clay Product Supply Company.
    Before Rice, P. J., Porter, Heedeesoe, Mobrisoe, Oelady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order refusing to take off nonsuit.

      Harry E. Kohn, for appellant.
    — The contract was properly rescinded: Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. Repr. 876) ; South Fork Canal Co. v. Gordon, 73 U. S. 561; Morgan v. McKee, 77 Pa. 228; McCombs v. McKennan, 2 W. & S. 216; Coal Co. v. Ryan, 107 Ill. 226; Barnes v. Denslow, 9 N. Y. Supp. 53; Eckel v. Murphey, 15 Pa. 488; Oil Co. v. Brewer, 66 Pa. 351; Rugg v. Moore, 110 Pa. 236.

      Edwin 0. Miehener for appellee.
    — The contract is an entire contract: Gill v. Lumber Co., 151 Pa. 534; Easton v. Jones, 193 Pa. 147; Rugg v. Moore, 110 Pa. 236.

      February 25, 1907:
    Where one party to a contract fails to perform at the stipulated time but the .other party with notice thereof does not treat the contract as at an end but acts in affirmance of it, he cannot afterwards elect to rescind: Lynch v. Gas Co., 165 Pa. 518 ; Summerson v. Hicks, 134 Pa. 566; Remington v. Irwin, 14 Pa. 143; Kitchen v. Stokes, 9 W. N. C. 48; Harris v. Ligget, 1 W. & S. 301; Hartman v. Meighan, 171 Pa. 46; Pratt v. Campbell, 24 Pa. 184.
   Opinion by

Head, J.,

On October 10, 1903, the plaintiff and defendant entered into a written contract for the purchase and sale of 302,000 paving blocks. The consideration to be paid was reached by applying the rate of $12.00 per M. to the number above stated. The place of delivery named in the contract was f. o. b. cars Windber, Pa. The clause governing shipments was “Please ship as follows: One car load at the earliest possible moment, the balance of 37,800 immediately following telegraphic instructions from us, and the remaining 264,600 beginning November 1 next, deliveries to be completed by December 1, 1903.” The terms of payment were “ Terms net cash on the 20th of each month for deliveries made in preceding month.” The seller agreed “ to give guarantee for proper wear for five years.”

Was the contract, the essential features of which have been noted, entire or severable? In Shinn v. Bodine, 60 Pa. 182, we have laid down by Mr. Justice Shakswood a clear and satisfactory statement of the principle to be applied in all such cases. “The entirety of a contract depends on the intention of the parties, and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown.” In Easton v. Jones, 193 Pa. 147, Mr. Justice Mitchell, not only adopts the language above quoted, but goes on to show that even the actual splitting up of the consideration into partial payments is in no way inconsistent with the conclusion, reached by ascertaining the intention of the parties, that their contract was entire. “ There is nothing to prevent parties, even in entire contracts, from agreeing to partial payments pending the full performance, and that is what was done in the present case.” Looking then for the intention of the parties as expressed in their contract, and regarding that, when found, as controlling, notwithstanding the divisibility of either the subject-matter or the money consideration, we are led to the conclusion that the contract, in this case, was an entire one.

What obligations then does the law impose upon parties to such a contract? It is a principle of our law, so ancient and oft declared that it has become axiomatic, “ that when a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove, that he has performed, or is ready to perform, his part of the contract, or that the performance was prevented by the defendant: ” Shaw v. Turnpike Co., 2 P. & W. 454; Norris v. Clark, 29 Pa. Superior Ct. 562, and the long line of cases there reviewed. We need not here stop to consider the exception to the above rule, as well established as the rule itself, which has been thus stated. “ There are some contracts, on which there may be a recovery without a literal performance by plaintiff; when the main object of the contract has been accomplished, and immaterial or secondary stipulations are not performed, there may be a recovery, subjeci to a deduction for damages as to the parts not performed: ” Martin v. Fridenberg, 169 Pa. 447. Our case is not within this exception.

During the month of October, 1903, there were shipped, on account of the contract, 37,800 blocks; and during November, down to and including the 21st day of that month 116,000 additional, or in all 153,800, being about one-half the entire number contracted for. No shipment was made after November 21, and on 27th of the same month plaintiff wrote to defendant declaring the contract annulled and that no more brick would be shipped except under new conditions therein stated. Under the contract a partial payment had become due on November 20 for the brick shipped during October, viz., 37,800 blocks at $12.00 per M., or $453.60. The cheek for this amount was received on November 24 and duly credited to defendant. Thus matters remained until December, 1904, when this action was begun to recover $1,392 for 116,000 blocks, at the contract price, shipped during November, 1903.

On the trial the plaintiff, not claiming that it had performed, even in a substantial way, its own obligations under the contract, stood on the position that its action, on November 27,1908, in declaring the contract annulled, was legally justifiable and therefore, whilst it was.absolved from the obligation to further perform, the law would compel • the defendant to pay for the partial performance, even though the contract was an entire one. If the position was well taken the conclusion would follow.

Either party to a contract may, of course, rescind with the assent of the other. Or he may, of his own motion, lawfully rescind if the act of rescission be based upon such a substantial breach of the contract by the other as would warrant a legal inference that the latter no longer intended to be bound by its terms. But such right must be exercised at a proper time, for an existing cause and under circumstances evincing good faith. The alleged breach, by the defendant, upon which the plaintiff seeks to justify its act of rescission on November 27, consisted solely in the fact that the check for $453.60 already referred to, which, under the provision in the contract should have arrived on the 20 th, did not actually come to hand until the'24th, one of the intervening days being Sunday. Whilst, if we were to look at the manner in which the parties dealt with each other on the subject of shipments, each trying to adapt itself to the convenience of the other rather than to stand on the letter of the contract, we might fairly regard as harsh, a determination to summarily rescind such a large contract, at that late season, for the trifling delay in the payment of so small a sum, we need not undertake to say it would be illegal.

There was certainly a failure on the part of the defendant to strictly comply with its covenant to pay on the 20th. Had the plaintiff, at the close of that day, declared the contract rescinded and notified the defendant, perhaps the latter could not have been heard to complain. But nothing was then done. On the following day, the 21st, the plaintiff, evidently considering the contract still in force, made a further shipment. Even then had the plaintiff acted, its action could probably find the necessary support in Reybold v. Voorhees, 30 Pa. 116. But when, nothing in the way of rescission yet having been done, the check of the defendant reached the plaintiff on the 24th; when this check was received and accepted without protest or objection ; when the plaintiff receipted and returned the bills that accompanied the check, in a letter dated November 24, which did not, so far as the evidence discloses, contain any intimation of an intention to rescind, the time for such action had, in our judgment, gone by. The cause foir rescission, if one existed on the 20th, or between that date and the 24th, had been extinguished by the joint act of the parties ; the sin against the letter of the covenant had been washed away by an act of reparation accepted as ample by the party sinned against.

We regard the act of the plaintiff then in declaring, for the first time, a rescission of this contract in its letter of November 27 as an arbitrary act that cannot be justified, under the facts as they then existed, upon the authority of any decided case that has been brought to our notice. As the contract sued on was an entire one; as the plaintiff had not performed and as no sufficient cause for rescission existed at the time .the attempt to rescind was made, there remained no alternative for the learned trial court except to enter a compulsory nonsuit. The assignments of error are overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Farley v. Altoona & Logan Valley Electric Railway Company, Appellant.

      Appeals — Record—Testimo-ny—Certificate of judge.

    A loose paper not attached to, and not in anyway identifying the stenographer’s report of the testimony, and not filed in the office of the prothonotary of the court below until after the record and the stenographer’s report of the testimony have been removed to the appellate court, is not a compliance with rule 6, sec. 2, relating to the certification of testimony, and this is the case even though the paper be drawn in the exact words of the rule.
    The report of the evidence duly certified by the trial judge is not open to contradiction in the appellate court, and the report depends for its presumption of verity upon such certificate of the judge.
    Argued Oct. 24, 1906.
    Appeal, No. 53, Oct. T., 1906, by defendant, from judgment of C. P. Blair Go., Jan. T., 1906, No. 318, on verdict for plaintiff in case of John C. Farley v. Altoona & Logan Valley Electric Railway Company.
    February 25, 1907:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal on the ground that the testimony was not properly certified by the trial judge.
    No certificate was filed in the court below until after the record had been removed. At the hearing before the Superior Court, the following paper was submitted by appellant’s counsel:
    “ The foregoing notes of testimony with the exceptions taken by counsels during the trial to the rejection or admission thereof, and of the charge with the exceptions thereto, have been examined by me and are hereby approved and ordered to be filed.
    Martin Bell,
    President Judge.”

      Thomas H. Grreevy, for appellant.

      David D. North, for appellee.
   Per Curiam,

As shown by the court’s answer to the defendant’s third point (sixth assignment), there was evidence from which a jury could find that the motorman was not paying that attention to the track in front of him which, in view of the speed of the car, the time of night, the travel upon the highway, and the other circumstances was required of him, and that if he had not been negligent in this particular the collision with the plaintiff’s vehicle would not have occurred. As to the question of the plaintiff’s contributory negligence we remark, that this is not a case where the party injured was struck immediately after driving on the track in front of an approaching car, but where, after driving a very considerable distance on the track, as he had a right to do particularly in view of the rough condition of the highway at the side, and upon receiving warning of the approach of a car in the rear, he attempted to leave the track, but before he could do so the collision took place. The reasons for áubmitting to the jury the question whether the plaintiff was contributorily negligent in not keeping a sufficient lookout to tbe rear satisfactorily appear in tbe portions of tbe charge which are quoted in the. assignments of error, and in the opinion of the learned president judge below overruling the motion for judgment non obstante veredicto. For discussion of the principles applicable to a case where such evidence appears, we refer to Smith v. Philadelphia Traction Co., 3 Pa. Superior Ct. 129 ; Hellriegel v. Southern Traction Co., 23 Pa. Superior Ct. 392 ; Davis v. Media, etc., Ry. Co., 25 Pa. Superior Ct. 444, and the cases cited in the opinions. If the case were properly before us for review upon the merits, we would be compelled to hold that the court committed no error, either in submitting the question of the defendant’s negligence and the plaintiff’s contributory negligence to the jury, or in the manner of submission.

But a question of practice is raised by the plaintiff’s motion to quash the appeal which cannot be ignored without establishing a precedent that would be likely to give trouble in the future. The writ was returnable on October 22 and the case was on the list for that week. The record, with the judge’s return to the writ, was filed on October 20, but although what purported to be the stenographer’s report of the testimony and the charge of the court was returned as part of the record, it was not certified by the trial judge as required by rule 6, section 2. But after the motion to quash was, made, there was filed in the office of the prothonotary of the court below, on October 23, a paper drawn in the form of the certificate prescribed by the above rule and signed by the president judge. A copy-of this paper certified by the prothonotary of the court below and the paper itself were submitted to us by the appellant’s counsel on the hearing in this court on October 24. As to the necessity of having the stenographer’s notes certified by the judge we refer to Connell v. O’Neil, 154 Pa. 582; Commonwealth v. Arnold, 161 Pa. 320; Pool & Son v. White, 171 Pa. 500; Harris v. Philadelphia Traction Co., 180 Pa. 184. In Commonwealth v. Arnold the present chief justice said: “We are not disposed to stand on mere forms. That the record is true and the judge so declares, is the substance, the form is not very material. He may so declare by formal bills with his seal, or he may adopt the notes of the stenographer as verity, and so declare by bis certificate at the end of the stenographic report certifying to its correctness as a whole. If he chooses to multiply his certificates by affixing one with his seal appended to every exception to the admission or rejection of evidence, that certainly will not affect the verity of the record. But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenographer must appear of record, by the certificate of the judge under his own hand.” These views have been reiterated in many cases, some of which we have cited. When it is remembered that the report of the evidence duly certified by the judge is not open to contradiction in the appellate court, and that it depends for this presumption of verity upon such certificate,'it is apparent that a loose paper not attached to, and not in any way identifying, the stenographer’s report of the testimony, and not filed in the office of the prothonotary of the court below until after the record and the stenographer’s report of the testimony have been removed to the appellate court, is not a compliance with •the rule, even though the paper be drawn in the exact words of the rule.

The appeal is quashed and the record remitted to the court below.


text:
    Groff v. City Saving Fund & Trust Company.
    - Appeals■ — Equity—Equity practice — Brief statement of errors — Rule 92 equity rules — Quashing appeal.

    Where an appeal is taken from a decree in equity, and it appears that the appellant has failed to file in the court below with his notice of appeal, a brief statement of error as provided by rule 92 of the equity rales, the appellate court will, in the absence of exceptional circumstances, quash the appeal.
    Argued Nov. 15, 1006.
    Appeal, No. 197, Oct. T., 1906, by L. E. Ryder, from decree of C. P. Lancaster Col, Equity Docket, No. 4, page 18B, on bill in equity in case of Annie H. Groff v. City Saving Fund & Trust Company.
    Before Rice, P. J., Portee., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.

      February 25, 1907 :
    Motion to quash appeal.

      T. B. Holahan and B. F. Davis, for appellant.

      W. U. Sensei, with him J. W. Appel, for S. R. Moss et al., appellees.

      W. S. Keller, of Coyle <f Keller, with him John F. Malone, for J. H. Rathfon, receiver, appellee.
   Opinion by

Henderson, J.,

The appellant is met at the threshold by a motion to quash the appeal because of his failure to comply with Rule 92 of the equity rules adopted by the Supreme Court, by filing in the court below with his notice of appeal a brief statement of the errors he alleged to have been made by the decree appealed from. The equity rules have the force of a statute in regulating the trial of equity cases. Neither the court of common pleas nor this court has power to ignore them ; and where they are disregarded in material matters and objection is made it is our duty to give effect to them: Light and Power Co. v. John, 18 Pa. Superior Ct. 498; North v. Pantall, 197 Pa. 303; Wilson v. Keller, 195 Pa. 98. The rule referred to was intended to define and limit the issues and to give the adverse party timely notice of the propositions which would be contended for in the appellate court. It was said in Wilson v. Keller, supra, that compliance with this rule is not a mere formality, the want of which can be cured at any subsequent time. It was intended for enforcement. The rule has been relaxed to the extent that the statement was permitted to be filed nunc pro tunc (Barlott v. Forney, 187 Pa. 301), where the circumstances were exceptional; but this is not a matter of right. No sufficient reason has been suggested why the rule should not be enforced in this case. The record is voluminous, numerous issues were heard in the court below and fifteen assignments of error are presented for our consideration. The record suggests the propriety both of the rule and its enforcement.

The appeal is, therefore, quashed at the cost of the appellant and the cause is remitted to the court below to be further proceeded with according to law and the rules of equity practice.