author: Orlady, J.,

text:
    Earl v. Ryan, Appellant.

      Constitutional law — Courts—Remedies—Local legislation — Act of July 2,1901, P. L. 607 — Road law.

    1. Legislators may, from time to time, provide new remedies, modify old ones, validate defects in form, provide new tribunals or new process for vindicating existing rights, and such enactments are perfectly within the limits of the state and national constitutions. The forms for administering justice, and the duties and powers of the court, as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will.
    2. The Act of July 2, 1901, P. L. 607, entitled an act “to provide for reviewing the proceedings of township road commissioners in laying out, opening and vacating roads,” is a constitutional exercise of the power of the legislature to provide a new remedy in road proceedings.
    3. The Act of July 2, 1901, P. L. 607, is not a local act although it applies only to certain townships in three counties.
    Argued Feb. 24, 1909.
    Appeal, No. 13, Feb. T., 1909, by defendants, from order of C. P. Lycoming Co., discharging rule to dismiss certiorari in case of H. B. Earle et al., Citizens and Taxpayers of McNett Township, v. John Ryan et al., Supervisors, and James I. Fields, Town Clerk of McNett Township, and George E. Walker et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to strike off certiorari. Before Hart, P. J.
    On April 18,1908, the petition of a number of citizens and electors of McNett township was presented to the supervisors thereof, praying them to lay out and open up a public road in said township. On April 25, 1908, the supervisors reported against laying out the proposed road. On May 4,1908, a number of citizens of the township appealed from the action of the supervisors and asked for the appointment of reviewers. On May 9 and 20, 1908, reviewers were appointed. On June 18, 1908, the reviewers reported and returned to the town clerk the laying out of the public road as prayed for in the original petition to the supervisors; and on the same day the petition for the writ of certiorari was presented to the court of common pleas of Lycoming county; and the writ ordered to be issued. The petitioners for the road denied the right of the court to issue the writ of certiorari.

      Error assigned was order discharging rule to dismiss certiorari.

      J. F. Strieby, for appellants.
    The act is unconstitutional for two reasons: 1. Because it extends the jurisdiction of the court of common pleas to issue writs of certiorari to other tribunals than those enumerated in art. V, sec. 10, of the constitution.
    2. Because the act is not a general law; but a mere amendment to the local road laws of Bradford county; and therefore it is in violation of art. Ill, sec. 7, of the constitution, prohibiting the general assembly of the state from passing any local or special laws, regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.
    The Act of July 2,1901, P. L. 607, cannot be sustained upon any rational theory of classification. Since the Act of May 23, 1874, P. L. 230, was passed, dividing cities into three classes, it seems that every act, that did not apply to every city of a given class, has been considered a local act, and therefore unconstitutional : Davis v. Clark, 106 Pa. 377; McCarthy v. Commonwealth, 110 Pa. 243; Scranton v. Silkman, 113 Pa. 191; York School District’s Appeal, 169 Pa. 70; Sample v. Pittsburg, 212 Pa. 533.

      J. W. Stone, of Stone & Brooks, with him Sechrist & Hickok, for appellees.
    The constitution allows to the legislature every power which it does not positively prohibit: Norris v. Clymer, 2 Pa. 277; Weister v. Hade, 52 Pa. 474; Sharpless v. Mayor, etc., of Philadelphia, 21 Pa. 147; Russ v. Commonwealth, 210 Pa. 544.
    March 3, 1910:
    Where a right exists, but no remedy to enforce it, it is within the constitutional power of the legislature to provide one: Hepburn v. Curts, 7 Watts, 300; Turnpike Co. v. Commonwealth, 2 Watts, 433.
    The Act of assembly, approved July 2, 1901, P. L. 607, does not violate art. Ill, sec. 7, of the constitution prohibiting the general assembly from passing any special or local law, regulating the affairs of counties, cities, townships, wards, boroughs, or school districts: Evans v. Phillipi, 117 Pa. 226; Com. v. Moir, 119 Pa. 534; Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44; Wheeler v. Philadelphia, 77 Pa. 338: Scranton v. Whyte, 148 Pa. 419.
   Opinion by

Orlady, J.,

All of the necessary facts of this case are admitted, and by an agreement of counsel, the only question involved relates to the constitutionality of an Act of assembly of July 2, 1901, P. L. 607. The proceedings in the case at bar were instituted under an Act of assembly approved April 5,1844, P. L. 200, known as the Bradford County Road Law, which by Act of April 10, 1873, P. L. 696, was extended to McIntyre township in Lycoming county, out of which township, and during the time the act was in force, McNett township was created, and since which time has been subject to the provisions of what is known as the Bradford County Road Law, by which the road commissioners are invested with authority and power to lay out, open and vacate public or private roads, and regulate proceedings relevant thereto.

This court decided on February 14, 1901, in Nobles v. Piollet, 16 Pa. Superior Ct. 386, that the court of common pleas has no jurisdiction to review by certiorari the proceedings of the boards of road commissioners elected in townships in Bradford county. Under the special Acts of April 13,1843, P. L. 214, April 5, 1844, P. L. 200, and March 30, 1846, P. L. 199, such boards are not “inferior courts not of record” within the meaning of the constitutional provision giving power to the common pleas to review proceedings on certiorari, and we held, that if the framers of the constitution of 1874 had intended to extend the jurisdiction of the judges of the common pleas, so as to authorize them to bring before them by certiorari the proceedings of all such bodies or tribunals involving the exercise of discretionary powers, affecting individual members of the community directly or indirectly, we think they would have expressed that intention in plain terms, and would not have left it to doubtful inference, and added that none of the acts “ authorized the Court of Common Pleas to review the proceedings, and in the absence of such legislation, the power of the Court to issue a certiorari to bring up the proceedings must be found in the Constitution or be held not to exist.”

On July 2, 1901, an act was approved, entitled “To provide for Reviewing the Proceedings of Township Road Commissioners in laying out, Opening and Vacating Roads” by which it is provided that hereafter the road commissioners of any township are by law invested with the authority and power to lay out, open or vacate public or private roads in their respective townships, or in case of appeal, road commissioners from other townships than that in which the road lies, and no appeal to any court is otherwise provided for, it shall be lawful for the Court of Common Pleas of the respective counties, to issue a writ, in the nature of a writ of Certiorari, etc., and the said court may examine the same as to the regularity of the proceedings had, and the jurisdiction of the road commissioners, etc., and if such proceedings are contrary to law, etc., the said court shall set the said proceedings aside, either in whole or in part, and such proceedings shall then be void and of no effect so far as set aside.”

Section 2, declares: “The court shall provide by appropriate rules the manner of issuing such Certiorari, the practise to be followed in disposing of the same, and shall direct who shall pay the cost of the proceeding on the Certiorari.” This act of assembly was manifestly enacted to meet the suggestion of the lack of legislation on this subject as announced in Nobles v. Piollet, 16 Pa. Superior Ct. 386, and the sole question for us relates to the constitutionality of this act of 1901.

Article V, sec. 10, of the constitution is as follows: “Thd Judges of the Court of Common Pleas within their respective counties, shall have power to issue writs of Certiorari to Justices of the Peace, and other inferior courts not of record ahc to cause their proceedings to be brought before them, an<L right and justice to be done.”

The contention of the appellant is so fully answered in Ba,nk of Kentucky v. Schuylkill Bank, 1 Parsons Select Equit; Cases, 180, that we quote it at large. “Legislators may, fror time to time, provide new remedies, modify old ones, validate defects in form, provide new tribunals or new process for •vindicating existing rights, and such enactments are perfectly! within the limits of the state and National Constitution^ The forms for administering justice, and the duties and powerl of the court, as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will. The Constitution of the State in terms authorizes the Legislature to 'ves'j; in the existing courts such power to grant relief in equity as shall be necessary from time to time, to enlarge or diminisl those powers, or vest them in such other courts as they may judge proper for the due administration of justice. The Legislature are the judges of this necessity, and can exercise the power granted to any extent, not inconsistent with the reserved rights of the people.’” Nor can we agree with the contention that the act is to be treated as a local and not''^ general law. Its title as well as every provision within it, body/ suggests a general enactment. 1

As said in Pike Township Road, 30 Pa. Superior Ct. 644, “ it is true the Act of 1901 confers on the Common Pleas authority to set the proceedings aside, either in whole or in párt, but in the exercise of this power, regard must be had to tm nature of the proceeding, and to the authority of the reviewer^ thereunder. We think it quite clear that it was not the intend tion to confer jurisdiction on the court to accomplish a result: which could not be accomplished in that proceeding by tfii report of the reviewers, much less where such results aN .e 1 radically different from what the reviewers manifestly intended.”

The fact that the law applies to but thirty-seven townships Bradford county, five in Sullivan county and McNett township in Lycoming county, and at present to no other townships in the State, is not a material consideration. Legislation is intended not only to meet the wants of the present, but to provide for the future; it deals not with the past, but in theory, at least, anticipates the need of a state healthy with Kigorous development: Wheeler v. Philadelphia, 77 Pa. 338.. he fact that the law applies only to one county now, would ;not be a sufficient objection, since in the natural progress of events under existing laws, others may grow into the class hereafter: Blankenburg v. Black, 200 Pa. 629.

) Individual needs and requirements are responsible for much legislation which now must be general, and when it is so, the causes that lead to it or the particular purpose which it is to erve at the time of its enactment have nothing to do with its onstitutionality. It may meet at the time of its passage the needs of but one community, but if in the future it will meet ¿hese same wants in all other communities, the legislation is as general as if at the time of its passage there had been no special reason calling for it: Pittsburg’s Petition, 32 Pa. Superior Ct. 210, affirmed by the Supreme Court, 217 Pa. 227.

The constitution allows the legislature every power which it does not positively prohibit, and in this enactment the power (jf'the court of common pleas was extended so as to review the Action of the commissioners of roads, and to cause their proceedings to be brought before them, and right and justice to be done in order to provide for the absence of such legislation as suggested in Nobles v. Piollet, 16 Pa. Superior Ct. 386.

/As stated by the court below it would seem to be the ob-ct of this act to bring the proceedings of all commissioners f highways, no difference when or how lawfully created, hether now existing, or hereafter to be created, under the reviewing power of the court in a manner in conformity with the Sower of the courts in all other proceedings for the laying out nd opening of public highways. It is plain that great injustice might be done did not such power exist, and the persons aggrieved would otherwise be without any adequate remedy at law.

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


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Bayliss v. Hough, Appellant
    (No. 1).

      Contract — Sales—Affidavit of defense — Royalties.
    1. In an action to recover royalties under a continuing contract to sell a patented article, an affidavit of defense averring that there had been omitted from the contract by mistake a provision for its termination in a particular manner, is insufficient, if it does not also aver that the defendant had endeavored to terminate the contract in the manner provided for in the clause alleged to have been omitted from the agreement by mistake.
    2. Where in such a case the contract provides that a certain number of the patented articles should be sold per annum on a royalty of twenty per cent of the selling price to wholesalers, and twenty-five per cent to retailers, the court commits no error in entering judgment for plaintiff for twenty per cent of the lowest schedule price to dealers for the whole number of articles stipulated to be sold in one year, if it appears that no articles had in fact been sold.
    Argued April 14, 1909.
    Appeal, No. 67, April T., 1909, by defendant, from order of C. P. Venango Co., Nov. T., 1907, No. 52, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Bayliss et al. v. Charles N. Hough, trading as the Charles N. Hough Manufacturing Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Assumpsit to recover royalties.
    Rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      March 3, 1910:

      P. M. Speer and A. R. Osmer, with them J. H. Osmer and N. F. Osmer, for appellant,
    cited: Capital City Mut. Fire Ins. Co. v. Boggs, 172 Pa. 91; Kenderdine Hydro-Carbon Fuel Co. v. Plumb, 182 Pa. 463; Winston Cigarette Machine Co. v. Wells-Whitehead Tobacco Co., 141 N. C. 284 (53 S. E. Repr. 885).

      Samuel Grumbine, for appellees,
    cited: Beecher v. Stein, 139 Pa. 570; Johnston v. Cowan, 59 Pa. 275; Ryon v. Starr, 214 Pa. 310.
   Opinion by

Head, J.,

The plaintiffs in this action seek to recover certain moneys alleged to be due them under the terms of a written agreement, a copy of which is attached to their statement. It therein appears that the defendants secured from the plaintiffs the exclusive right to manufacture and sell a patented mechanical device or “useful improvement in Crumbie tongs,” supposed to be of value to oil drillers. In consideration of such right the defendants expressly undertook to perform three distinct covenants, viz.:

(a) To sell the first year “at least 750 tongs; second year 1,500 tongs; third and each subsequent year 2,000 per annum.”

(b) To sell the tongs according to a schedule of prices set forth in the agreement specifying the various sizes and covering sales either at wholesale or by retail.

(c) To pay to plaintiffs “on all sales made to the trade or dealers a royalty of twenty (20) per cent, of the selling price, and on all tongs sold at retail a royalty of twenty-five (25) per cent, of the selling price.” ;

The claims of the plaintiffs arising under this contract during the first and second years of its existence have been amicably adjusted by the parties, and with them we have no direct concern. The present action deals only with the third year. During this period it is conceded there was practically an entire breach of the first quoted covenant, the defendants having failed to sell any tongs, and as a consequence thereof, to pay any royalty.

In entering judgment for want of a sufficient affidavit of defense the learned trial court below correctly held that the affidavit disclosed no legal defense to the plaintiffs’ claim for damages resulting from the breach. The original affidavit, as well as the supplemental one, consists chiefly in the averment that by a mistake or oversight there was omitted from the agreement sued on a clause or section which would have permitted the defendant to terminate the agreement by complying with certain conditions specified. The learned court below properly held that inasmuch as the affidavit contained no averment that the defendant had ever undertaken to terminate the agreement in the manner provided for in the clause alleged to have been omitted from the agreement, it was not now relevant to determine whether or not such clause had been mistakenly omitted. Whether it had' been or not, the agreement still remained in full force because the defendant had never availed himself of his alleged right to terminate the contract according to the clause which he now sets up as a part of the agreement.

The duty of construing the written agreement rested on the court. Having properly determined that the affidavit of defense disclosed no legal justification for the breach alleged in the statement and not denied, the right of the plaintiffs to damages for such breach necessarily followed.

If the agreement itself provided the measure of damages for such breach, the amount of money due to the plaintiffs was fixed by the parties themselves, and there was no question of fact in issue for a jury to try.

Clearly enough, we think, in such a case the plaintiffs’ damages would be compensatory. That is to say, they were entitled to such a sum as would put them as nearly as possible in the same position they would have occupied had the defendant performed his obligation under the agreement. His undertaking to sell at least 2,000 tongs during the third year, the period now under consideration, was flat and unconditional. The lowest price at which he could have sold the tongs, under the schedule was $1.15 per pair or set. At this rate the selling price of the minimum yearly prodüct would have been $2,300 This would be on the assumption that all of the tongs were sold to wholesalers. The defendant could have complied with his covenants by selling 2,000 tongs at this lowest rate to wholesalers, and had he done so, the •plaintiffs would have no right to complain, although it might be improbable that all of such a number would have been •tnade of the smallest size of pipe specified and sold at the lowest rate mentioned to the preferred class of purchasers. The smallest royalty on the selling price above mentioned, j^ifipulated for in the agreement, would have been twenty per ;ent. It thus appears, with legal certainty, that if the defendant had performed his covenants, the smallest sum of oney that would have been due to the plaintiffs, under a bohstruction of the contract most favorable to the defendant, ould have been twenty per cent of $2,300, or $460.

For this amount, and on the theory above indicated, the learned court below entered judgment against the defendant. If- the plaintiffs were willing, as they appear to have been, o abide by that judgment, we can see no ground on which he defendant may justly complain. Nor is it apparent what enefit the defendant could have derived from a trial by ury. As already stated, the agreement being in writing, the construction of it became a question of law for the court. In the discharge of that duty we think the court would necessarily have determined, as a matter of law, that the agreement furnished at least a minimum measure of damages. Se would have been obliged to say that no evidence, foreshadowed by the affidavit of defense, would have been sufficient to reduce the plaintiffs' claim to less than $460. For bhese reasons we must conclude that no wrong has been done jO the appellant in the judgment that was entered, and the assignments of error are therefore overruled.

^'Judgment affirmed.


text:
    Bayliss v. Hough, Appellant
    (No. 2).

      Contract — Sales—Continuing contract — Termination of contract— Reasonable notice — Affidavit of defense.

    Where a written contract to sell so many patented articles per year on a royalty, contains no provision for the termination of the contract, either party may terminate it upon reasonable notice; and in an action to recover the royalties for a particular yeár, an affidavit of defense is sufficient to prevent judgment for royalties for the whole year, which avers that the seller could not continue to sell, except at a loss; that he had served a written notice to terminate about’two months after the year had begun; and that other notices had been expressly given of his desire to end the agreement because its conditions could not be complied with except at serious and continued loss to himself.
    Argued April 14, 1909.
    Appeal, No. 127, April T., 1909, by defendant, from order of C. P. Venango Co., Aug. T., 1908, No. 51, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Bayliss et al. v. Charles N. Hough, trading as The Charles N. Hough Manufacturing Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for royalties.
    Rule for judgment for want of sufficient affidavit of defense.
    The facts appear by the opinion of the Superior Court.

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

      P. M. Speer and A. R. Osmer, with them J. H. Osmer and N. F. Osmer, for appellant.
    The general principle that contracts without time limit are terminable on reasonable notice by either party, is sustained in Coffin v. Landis, 46 Pa. 426; Phila. & Reading R. R. Co. v. River Front R. R. Co., 168 Pa. 357; Cumberland Valley R. R. Co. v. Gettysburg & Harrisburg Ry. Co., 177 Pa. 519; Marble v. Standard Oil Co., 169 Mass. 353 (48 N. E. Repr. 783); Kenderdine Hydro-Carbon Fuel Co. v. Plumb, 182 Pa. 463; Irish v. Dean, 39 Wis. 562; Savidge v. Surgical Asso., 59 Mich. 400 (26 N. W. Repr. 652); McCullough-Dalzell Crucible Co. v. Phila. Co., 38 P. L. J. (N. S.) 365.
    March 3, 1910:

      Samuel Grumbine, for appellees.
    The appellees contend that the legal presumption that applies in all cases where parties enter into a contractual relation without fixing a term during which it is to continue, viz.: that it is to continue during the will of both parties, does not apply to the contract under consideration. The subject-matter being a patent secured to the plaintiffs for the term of seventeen years from August 18, 1903, the contractual relation could not exist beyond the life of the patent, and the legal presumption is that it was intended for that period.
   Opinion by

Head, J.,

This case is closely related to Bayliss v. Hough in which an opinion has this day been filed, ante, p. 454. The parties are the same and the present action is based on the same contract as the former one, being to recover moneys claimed to be due under'that contract during the period of the fourth year of its existence. In this case, as in the former one, the learned trial judge entered judgment for want of an affidavit of defense, and again the defendant appeals.

If the agreement was still in force during the period covered by this action, we follow our former decision in holding that the breach of its covenant requiring the defendant to manufacture and sell at least 2,000 tongs has not been excused or justified by the facts set forth in the affidavit which is, in this respect, substantially the same as the former one. Again, the defendant sets up that after a thorough effort on his part he has been unable to sell the tongs at the prices named in the contract except at a loss to himself. If this be a defense, no party could be legally held to the obligations of a losing contract. Again, the defendant avers that there was omitted from the written contract, by mistake, a provision permitting him to cancel it upon the following terms as set forth in a letter made part of the affidavit:

“That if for any good reason the party of the second part wishes to annul and cancel this agreement, it may be done at any time upon payment to the party of the first part of the sum of 1200.00 as a royalty, together with all royalties that may be due upon .tongs sold or in stock or in process of manufacture.” But the present affidavit, like the former one, contains no averment that the defendant ever paid or tendered the stipulated sum upon which his right to cancel would accrue, even if that condition were written in the contract. Still further, the defendant advances the theory that under a proper construction of the contract he was not required to pay any royalty if he sold no tongs, and therefore there was nothing due to the plaintiffs under the contract, even though there was an entire breach of the covenant requiring him to sell a minimum number of tongs. The very correspondence attached to his affidavit shows that the plaintiffs rejected his effort to have the contract so written, and this averment is without force.

If there is any substantial distinction between this case and the former one, it arises from the fact that during the period covered by this action, to- wit, during the month of May, 1907, the defendant gave notice that he would no longer be bound by the terms of the contract. Did the right to thus cancel his contract and relieve himself of liability exist in the defendant, and if it did, was it exercised at such a time and in such a manner as to relieve him from his obligation for the current year? No such right of cancellation is expressly reserved to the defendant by the contract as it is written. We have already seen that even if we were to regard the contract as reformed by inserting in it the special clause alleged to have -been omitted by mistake, it would be unavailing to aid the defendant because he has not performed the condition upon which the right to cancel under the clause would be effective. It cannot be said that the contract had expired by its terms because the parties in executing it saw fit to insert nothing fixing its period or duration.

The construction of it adopted by the learned court below was that the obligations of the contract were to endure through the life of the patent protecting the device. The reasons for this conclusion are pointed out in his opinion, and they are not without force. Had the parties intended that each should be bound during the long period of years covered by the life of the patent, it would have been easy to have so provided. Where parties to a contract have chosen to leave the period of its operation indefinite and without limitation in regard to time, the law has wisely declared that either party may terminate it at any time after reasonable notice to the other. This principle is clearly set forth in Coffin v. Landis, 46 Pa. 426, and the motives which often induce parties in cases like the present one to leave their contracts indefinite as to time are thus stated:

“There is nothing said in regard to the time during which the agreement should continue, and nothing in its language to define the duration of the service of the plaintiff, or of his employment by the defendant. This the contracting parties seem to have left out of consideration, of at least failed to make it a subject of covenant obligation; It may be that neither was willing to bind himself for any definite period. The scheme was an experiment. ... It is evident, then, that were we so to construe the agreement as to hold it obligatory upon the one party to employ, and upon the other to serve during any period, we should be in danger of imposing liabilities which both parties purposely avoided assuming.” It was there held that the right remained in either party to terminate the contract at pleasure after reasonable notice to the other.

In Kenderdine Hydro-Carbon Fuel Company v. Plumb, 182 Pa. 463, under a state of facts in many respects resembling the one now before us, Mr. Justice Williams thus stated the principle:

“The terms of the written contract were indefinite as to its duration. No time was fixed at which the relation between the parties should cease. If either party desired to terminate it, if this could not be done by agreement, it was his duty to deal fairly by the other party and give a reasonable notice of his intention to withdraw from it at a fixed time.”

Where therefore, in a case like the present one, it appears that the obligations of a contract are followed by loss and hardship to one of the parties, and where the contract itself contains no express stipulation fixing the term of its own existence, we think we have a proper case for the application of the legal principle referred to, and this leads us to the conclusion that this contract could lawfully be terminated by the defendant after reasonable notice to the other party of his intention in that respect.

Was such notice given? The written notice attached to the affidavit of defense was not given until more than two months of the then current year had expired. The affidavit, however, avers that repeated notices had been expressly given of the desire of the defendant to end the agreement because its conditions could not be complied with except at serious and continued loss to him. Whether, under all these circumstances, the written notice given in May became effective at once, or at what period thereafter it should go into effect, became a mixed question of law and fact which would necessarily require a trial of the issue between the parties and the development of the facts in connection with the notice.

With the record in this condition we think the learned judge below was in error in entering judgment for the plaintiff for the minimum royalty for the entire year from March, 1907, to March, 1908.

Judgment reversed and a procedendo awarded.


text:
    West Washington Borough v. Fouse, Appellant.

      Ejectment — Equitable remedies — Equity—Res adjudicata.

    Where a borough wrongfully enters upon a corner lot for the purpose of widening a street, and judgment is entered against it in an ejectment by the owner, but execution is stayed on a bond being entered to secure the owner in condemnation proceedings, the borough cannot, after having failed to appeal in the ejectment, or to proceed to condemn, maintain a bill in equity to enjoin the owner from interfering with the use of the lot as a street.
    Argued April 22, 1909.
    March 3, 1910:
    Appeal, No. 76, April T., 1909, by defendant, from decree of C. P. Washington Co., No. 1,708, In Equity, on bill in equity in case of West Washington Borough v. J. G. Fouse et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Reversed.
    Bill in equity for an injunction. Before McIlvaine, P. J.
    The facts appear by the opinion of the Superior Court.
    The court below entered a decree enjoining the defendant from interfering with the use of the land in controversy as a public street.

      Errors assigned was the decree of the court.

      R. W. Irwin, with him Jas. A. Wiley, for appellant.

      James P. Eagleson, with him G. P. Baker, for appellee,
    cited: Richardson v. McKeesport, 18 Pa. Superior Ct. 199; Spring v. Pittsburg, 204 Pa. 530; Farley v. Stokes, 1 Parson’s Eq. 422; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Trexler v. Kuntz, 36 Pa. Superior Ct. 352.
   Opinion by

Head, J.,

Some time prior to April, 1892, Walker & Fulton were the owners of a tract of one and one-half acres in the plaintiff borough, then recently incorporated. As the tract lay it was bounded on the south by West Chestnut street (formerly the national pike); on the north by Fayette street, both running east and west; on the east by Grove avenue; on the west by Shaw alley, twenty feet wide.

In subdividing this tract into building lots, they ran an alley across it from east to west, perhaps midway between Chestnut and Fayette streets, so that lots could be made to front on both streets. On the southern tier they sold and conveyed to George H. Smith the westernmost lot fronting thirty feet on Chestnut street and extending back along Shaw alley on the west to the new alley in the rear.

Walker & Fulton then conceived that their interests in the s sale of their remaining lots would be advanced if they could have Shaw alley widened to a fifty foot street and Grove av-‘; enue, which irregularly cut the lots along their eastern line, ( vacated. To accomplish this they appear to have entered into two executory agreements, one with George H. Smith, k the other with the borough officials. The former was reduced to writing, the latter was not. From the minutes of the council, and perhaps from other evidence produced at the trial, it appears that Walker & Fulton undertook to procure from Smith a conveyance of his thirty foot lot adjoining ShavA alley. Whether they then owned the lot in the rear fronting \ on Fayette street, or were to secure it from a former purchaser, does not appear. They then offered to grade out this , additional thirty foot strip in conformity with the alley and thus convert the alley into a fifty foot wide street, which*they agreed to dedicate to the borough. The consideration they were to receive for doing this was the vacation of Grove avenue on the eastern side of their property. (

By their agreement with Smith, the owner of the corner ^ lot, they arranged to take the lot next east of his, grade it up to harmonize with the new street they proposed to make by 1 A the use of the lot they had already sold him, fence it and lay a boardwalk along the street, and then convey it to him in exchange for the corner lot which he was to surrender up/ By their agreement, which was shortly thereafter reduced to writing, and which recited that they had taken possession of his lot for the purpose of making a street, they agreed to do'( the things already recited, “and then the said Smith agrees-^ to take said lot in exchange for the one taken, the parties of the first part (Walker & Fulton) being at the expense of making both conveyances, the deed to be executed and delivered on the completion of this agreement as aforesaid.” k

By virtue of these several agreements Walker & Fultoii^ entered upon Smith’s lot and proceeded to grade and dispose^ of it in accordance with their obligation to the borough. The } street was thus practically made and thrown open to public f travel. The borough without any arrangement whatever-, with Smith, the owner of the lot, and without any ordinance laying out and opening a street through his property, appears to have relied on the arrangements made with Walker & Fulton, accepted the offered street, and has since that time improved it and regarded it as one of the public streets of the borough.

A dispute seems to have shortly arisen between Smith and Walker & Fulton as to their compliance with the agreement upon which the exchange of lots was predicated. With the merits of that dispute we do not think we now have any concern, as that entire question has been adjudicated in the proceeding to which we shall shortly refer. As a result of the dispute no exchange of lots was ever effected. Walker & Fulton, although they now allege that they performed their part of the agreement, never had any deeds prepared, as they had agreed to do, never executed a deed for their own lot, never tendered such deed to Smith, and never demanded from him a conveyance. Having failed in these respects to perform the covenants of the agreement binding upon them, they were never in a position to go into a court of equity to demand a specific performance of their contract. Indeed, it would seem from the evidence that, after the original agreement ivas made, none of the parties took any active steps toivards carrying it into execution. In the course of time both acted with their respective lots as if neither owed any duty to the other.

By divers mesne conveyances J. G. Fouse, the present appellant, became vested with the title of George H. Smith to the corner lot already mentioned, and finding the borough in the possession of the lot and claiming the right to retain the same as against him, he brought an action of ejectment in 1905, in the court of common pleas of Washington county, against the borough to try and determine the title and right of possession to the property. The cause proceeded regularly to trial and resulted in a •verdict in favor of Fouse upon which judgment was after-wards entered. From that judgment no appeal was ever taken by the borough, and it consequently stands as a final adjudication of all questions then in issue between the parties.

The reasons advanced by the learned trial court in that case for his action in entering judgment on the verdict are thus summed up in his opinion refusing a new trial, which is made a part of the pleadings in the present case. “The borough could have by ordinance condemned this lot for public use as a street and taken it from the owners thereof by paying them such damages as would fairly compensate them, or they could have taken it under an agreement with the owners. They undertook to do this, but dealt only with those who had an equity in the lot under an article of agreement, forgetting that the legal title was the superior title and that the owner thereof should have been consulted. In doing this the borough took the risk of the written agreement being fully carried out or of enforcing its specific performance.” Inasmuch, however, as the defendant in that action was a municipal corporation, with the right and power to appropriate the property for public use, and as, under a mistaken claim of right, it had actually entered upon the property and converted it into a street for the use of the public, the learned court, in the exercise of its power to administer equitable relief even in a common-law action, and following the well-known line of decisions of our Supreme Court in like cases, whilst entering judgment for the plaintiff on the verdict, June 24, 1907, granted a stay of execution in the following language: “With stay of execution, provided the defendant pay the costs of suit and within twenty days from this date file in this court .... a bond in the penal sum of $500 with, etc., .... conditioned to pay to the plaintiff .... the damages that may be adjudged him in any legal or equitable proceeding for the occupancy of the lot in dispute by the defendant borough as one of its public streets.” The borough paid the costs, filed the bond, but seems to have taken no further steps whatever until August 12 of the same year, when it filed this bill in equity- praying that Fouse, the plaintiff in the ejectment and the defendant in the bill, should be permanently enjoined from interfering in any way with the continued use, by the borough, of his lot of ground for a public street. An answer was filed denying the jurisdiction of a court of equity in the premises and setting up the judgment in the action of ejectment as a conclusive adjudication of the rights of the parties. The cause proceeded to final hearing and a decree was entered enjoining the defendant as prayed for, from which decree this appeal is taken. The foregoing lengthy statement of facts in the cause appears tó be necessary to fairly exhibit the anomalous situation of the parties as now presented by the record before us.

In the trial of the action of ejectment the claim of the borough that it was in lawful possession of the ground demanded by Fouse was presented for adjudication to a tribunal which had complete jurisdiction both of the parties and the subject-matter, and which, from the most ancient days, has been deemed best equipped to try and determine disputed questions concerning the title to or right of possession of land. In that action, as in every other similar one, the plaintiff had to bear the burden resulting from the principle that he must recover, if at all, on the strength of his own title. The defendant had the right to rely not merely on a superior title in itself, if such could be shown, but upon any outstanding title in any other which would show that the plaintiff’s claim was without solid foundation. That such a court too, in the trial of an action of ejectment, may exercise equitable powers and recognize and enforce equitable rights and estates, as distinguished from those purely legal, cannot be denied. Indeed, in that very trial the court, without complaint, exercised such power in withholding from the plaintiff the fruits of his legal victory until the defendant could have an opportunity to do what it had the power to have done in the beginning, to wit, appropriate the property for public use, leaving the ascertainment of the amount of the damages and the persons to whom they might accrue for future determination under the laws of the commonwealth.

As already stated, the defendant in that action appears to have acquiesced in the judgment in which it resulted, because no appeal therefrom has ever been taken, nor has the borough taken advantage of the opportunity afforded it to begin condemnation proceedings in the manner provided by law.

Having thus had a solemn judicial determination that the right of Fouse to the possession of his lot still remained superior to any possessory right which it could advanee by virtue of the facts above stated, the borough filed this bill and goes into the equity side of the same court and asks a chancellor, upon the same facts, to restrain by injunction the plaintiff from the enjoyment of the possession of his property, which by the verdict of the jury and the judgment of the court thereon had been determined to be rightfully his. No authority has been advanced, none we believe can be, in support of such an anomalous procedure. If the decree in this case can be sustained, the judgment in the time-honored action of ejectment, instead of determining the right of possession, would be but the beginning of a new contest in a court of equity to retry the same questions with the hope that a different conclusion might be reached. To such a theory of the law we are unable to give our sanction.

The fallacy of the argument of the learned counsel for the appellee clearly appears, we think, in his own interpretation of the effect of the judgment in the ejectment case. After quoting the condition imposed by the court when entering the judgment, the printed brief contains the following: “This condition does not mean, as the counsel for the appellant interprets it, that the borough must proceed to condemn this lot for a public street, but said condition plainly states that the stay of execution is given for the purpose of allowing the parties to determine their rights, either by legal or equitable proceedings. The borough of West Washington, the defendant in said ejectment suit, in accordance with said conditional verdict, chose to determine its rights in an equitable proceeding and filed the bill in this case.” In other words, say counsel, the trial at law determined nothing, and the resulting verdict and judgment left the parties where it found them, with the alleged rights of the borough in no way affected by the adverse judgment, although it had been entered by a court having full jurisdiction of both parties and subject-matter, after an investigation of all of the matters on which its present bill is rested.. Even when the law required two successive verdicts and judgments in ejectment to finally determine the title to land, the first judgment had much more significance than we are urged to attach to the one now under consideration. Since the passage of the Act of May 8, 1901, P. L. 142, which declares that one verdict in ejectment- "and judgment thereon shall be final and conclusive and bar the right,” the contention of the appellee seems to us to be wholly untenable.

Without attempting to further elaborate our views, we deem it sufficient to say that we are of the opinion that the plaintiff in the present appeal has exhibited no equity whatever, and that the decree entered by the learned court below must therefore be set aside.

Decree reversed and bill dismissed at the cost of the appellee.


text:
    John F. Byers Machine Company v. Risher, Appellant.

      Bailment — Sale—Change of contract.

    1. A written contract for the sale of a chattel may be subsequently changed by the parties into a bailment with an alternative for future conversion into a sale on compliance with stipulated conditions.
    2. The fact that'promissory notes are given for the installments of a rental in a bailment of a chattel, does not change the bailment into a contract.
    Argued May 11, 1909.
    Appeal, No. 64, April T., 1909, by defendants, from judgment of C. P. Butler Co., March T., 1904, No. 19, on verdict for plaintiff in case of John-F. Byers Machine Company v. H. A. Risher and George A. Dean.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Replevin for an engine and its equipment. Before Gad. BREATH, P. J.
    The facts are stated in the opinion of the Superior Court. .

      March 3, 1910:
    Verdict and judgment for plaintiff for $1,122.23. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      David S. McCann, with him Lev. McQuistion, for appellants.
    It is unquestionably the law of Pennsylvania that where a sale is made upon credit and afterwards at or after the time of delivery a lease or bailment of the goods is taken, the two papers must be regarded as one transaction, and taken together they amount to- a sale with a lease thereof as security for payment: Brunswick, etc., Co. v. Hoover, 95 Pa. 508; Cooper v. Whitmer, 18 W. N. C. 376; Wagner v. Com., 15 W. N. C. 14; In re Poore, 140 Fed. Repr. 786; Morgan-Gardner Electric Co. v. Brown, 193 Pa. 351; Ott v. Sweatman, 166 Pa. 217.

      H. TI. Goucher, for appellee.
    We contend that the court rightly construed the transaction resulting in the final agreement of May 5 to be a contract of bailment: Rose v. Story, 1 Pa. 190; Edwards’s App., 105 Pa. 103; Goss Printing Press Co. v. Jordan, 171 Pa. 474.
    The fact that the original intention of the parties is to make a sale, and such is the legal effect of their first agreement, does not prevent a change, while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with stipulated conditions: Goss Printing Press Co. v. Jordan, 171 Pa. 474; Stiles v. Seaton, 200 Pa. 114; American Car, etc., Co. v. Altoona, etc., R. R. Co., 218 Pa. 519; Miller v. Douglas, 32 Pa. Superior Ct. 158.
   Opinion by

Orlady, J.,

On April 4, 1903, the plaintiff company proposed in writing to furnish, packed and delivered, f. o. b. cars, Ravenna, Ohio, to George W. Smith, a hoisting engine and certain accessories, in which writing it was provided that the title to this. property was to remain in the name of, and be the property of John F. Byers Machine Company until fully paid for. This proposition was accepted by Smith in writing. Subsequently, on May 5, 1903, the parties by a more formal writing under seal, provided that the plaintiffs, as lessors, “hereby lease and hire the described property unto George W. Smith, lessee, of Parkers Landing, for the term of four and one-half months beginning May 5th and ending September 20th, 1903,” in consideration of which the lessee agreed to pay the lessor as rent and hire for the property for the term stipulated, amounts to be represented by his promissory notes, in monthly installments, the first becoming due on June 12, and providing further that in the event of the nonpayment of any of the notes, the plaintiff was authorized without process of law to retake immediately the possession of the property. And, further, the lessee agreed that at the expiration of the term he would return the property, and that upon the payment of the full rental price, he should have the option for ten days thereafter to purchase the property for the sum of $1.00, and upon payment thereof, a bill of sale would be delivered to him. The property was received by Smith and installed in Butler County, Penna.; and on June 12, the day the first note matured, the lessee made default, and gave notice to the lessor of his abandonment of the property, and directed the plaintiff “to go to Parker’s Landing and get the hoist.” Pursuant to this notice, the company sent their representative to take possession of the machine and to ship it back to Ravenna. They found it in the woods, prepared it for shipment as the property of the plaintiff company. A day or so prior to this, attachment proceedings had been instituted against Smith as an absconding debtor, and this resulted in a seizure and sale by a constable of the property, and in its purchase by the defendants. This action of replevin was instituted to recover possession thereof.

On the trial it was properly held that the plaintiff’s right depended upon the construction of the agreement of May 5. The fact that the original intention of the parties was to make a sale, and such is the legal effect of their first agreement, did not prevent a change in the contract while still existing, into a bailment with an alternative of future conversion into a salé on compliance with stipulated conditions: Goss Printing Press Company v. Jordan, 171 Pa. 474; American Car, etc., Company v. Altoona, etc., R. R. Company, 218 Pa. 519; Miller v. Douglas, 32 Pa. Superior Ct. 158. Nor does the fact that promissory notes were given for the installments of a rental change the nature of the contract: Ditman v. Cottrell, 125 Pa. 606; Lippincott v. Scott, 198 Pa. 283.

The proposition of April 4 became nugatory by the contract of May 5. While the earlier one was an accepted proposition, it was fully merged in the one of later date. The proceedings before the magistrate were so irregular that no title passed to the purchaser at the constable’s sale. The contract being one of bailment and not a conditional sale, no sale of this property as that of Smith would operate to divest the title of the plaintiff thereon. Smith having made default and the plaintiff promptly acting thereon, by taking possession of the property pursuant to the notice given by Smith, the bailment was terminated at that moment: Stiles v. Seaton, 200 Pa. 114.

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


text:
    Stewart v. Glade Mill Mutual Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Principal and agent — Application— Negligence of agent — Mistake of company.

    Where a person permits a fire policy to expire, and a month thereafter signs an application for a new policy, and delivers it to the proper agent of the insurance company, and at the same time pays to the-agent a survey fee, and the agent neglects to deliver the application to the company, and the company by mistake levies an assessment which both the insured and the agent thought was on the new policy whereas it was for a loss during the interval when there was no insurance, the company will be liable for the burning of the building described in the application, although no policy in fact had been issued to the applicant.

      Argued May 12, 1909.
    Appeal, No. 172, April T., 1909, by defendant, from judgment of C. P. Butler Co., Dec. T., 1907, No. 53, on verdict for plaintiff in case of R. W. Stewart v. Glade Mill Mutual Fire Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a contract of fire insurance. Before Gal-breath, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [But, it is contended, that inasmuch as the plaintiff’s farm was within less than 100 feet of an oil well, it could not be insured under the provisions of the defendant company’s constitution; that the defendant company cannot, by an estoppel, be held to have done that which it could not do directly; that no estoppel could arise inasmuch as the constitution of the company provides, in art. 2, sec. 6, “That no policy of this company will be issued to cover the loss on any property within one hundred and fifty feet,” nor “one hundred feet from any drilling or producing oil or gas well.” And it also provides, as set forth in this article, “If at any time after a policy of this company has been issued, the conditions mentioned in this article are found to exist, the executive committee may, after five days’ notice given the holder of such policy, cancel the same.” This provision of the constitution is not a prohibition, but a declaration of the company’s policy not to place insurance on certain classes of property, with the provision that if at any time after a policy is issued, the conditions mentioned are found to exist, the executive committee may, after five days’ notice, cancel the policy. But, whatever the force of the provision of the constitution, that provision contained a self-imposed limitation or restriction which the company making it could waive. The executive committee was the company for the purpose of placing insurance. Its work was final and conclusive and was the act of the company in that respect, and if its action involved a waiver of the self-imposed restriction of the company, we think it must be viewed as a waiver of the company of the constitutional provision. Its act, therefore, in levying an assessment on the plaintiff and sending him notice thereof must be taken as being the act of the company and a waiver of the self-imposed restriction or declaration of policy contained in the constitution of the company, and, if by that act the plaintiff was lured into a position of imagined security to his prejudice, the company cannot be heard to deny its act.] [1]
    [So, gentlemen, the question is for your disposition or at least the principal inquiry, I think, will be, when you return to your jury room, whether or not, by the sending of this assessment the plaintiff was lured into a position of imagined security, which really did not exist. If he was, then, we think the defendant company is estopped from now saying that he did not have insurance in their company. If they, by their own act, have led him to believe that he was insured in their company, even if that action be the result of a mistake on their part, it was a mistake of their company, and not of the plaintiff, or if by any act they made him believe he was insured in answer to a proposition submitted for insurance and which was in their possession, then, we think, under these circumstances, the company would be estopped from setting up the fact that it had not issued a policy in this case and would be estopped from saying the plaintiff did not have insurance in the defendant company. An estoppel may arise either by silence when there is a duty to speak, which can only be the case where the party sought to be estopped has knowledge or information which calls upon him to speak, or without such knowledge by some positive word or act which tends to encourage or mislead another and does so encourage and mislead him to his injury by luring him into a position of imagined safety or security. Now, the kind of estoppel that is claimed here is of the latter class. That is, if the defendant company by a positive act in sending this notice of assessment to plaintiff, encouraged plaintiff to believe and misled him into believing that he had insurance in the defendant company, although the policy had not yet been received by him.

      So, gentlemen, if you find that the plaintiff was so misled into a position of imagined security on that account, then, we say to you by virtue of this assessment, the defendant company is now estopped from saying that he did not have insurance, and, in that event, it would be your duty to find a verdict for the plaintiff for the amount of his claim, which is $1,200, which would bear interest from the time of the fire, December 8,1906. If you find, however, that he was not lured into a false position, then, gentlemen, there can be no estoppel.] [2]
    Defendant presented these points:
    3. It is in evidence that the application of the plaintiff for insurance with the defendant company was made on November 2, 1906, and the property of the plaintiff was destroyed by fire on the morning of December 8, following; that an assessment having been made by the executive committee, the secretary of the company sent notice of the assessment to the plaintiff on or about November 21, 1906; that this assessment was of two mills upon the face of the policies, and the assessment so sent to plaintiff was for $1.80, which would be two mills upon a policy of $900, being the amount of a former policy in the company held by the plaintiff, but which had expired shortly before November 2, 1906; that the assessment was not made upon the policy in suit but upon the former policy upon the mistaken belief upon the part of the secretary that the former policy was still in force; that the secretary had no knowledge of the plaintiff’s application for a new policy at the time he mailed the assessment to the plaintiff; that after the fire the plaintiff, on the same day of the fire, sent the amount of the assessment to the treasurer of the defendant company, the money reaching the treasurer late that evening, being a Saturday; that the treasurer had no knowledge of the application of the plaintiff for insurance or of the fire until that evening; that it was not until the morning of December 10 that the treasurer had knowledge that the company had not received the application for insurance, when he was leaving home to attend to the business of the company; that when the treasurer returned to his home on December 12, he returned the assessment to the -plaintiff, who then'received it; that the application for insurance, though taken by the agent of the company on November 2, was not sent in to the company until December 10, after the fire, which was the first information the executive committee had that the application had been made; that the agent taking the application mailed it to the secretary of the company on December 10, 1906, and on December 13, it was returned by the secretary to the agent; that under the by-laws' of defendant company the executive committee was not permitted to accept the application or issue the policy; that the by-laws required at least two of the executive committee, .composed of the president, secretary and treasurer, to approve the application, which was never done; that the plaintiff, upon receiving-the assessment without the policy was put upon inquiry as to why the policy had not been issued to him, which inquiry he could readily and speedily have made, but did not make. In addition to this, it has not been shown that the plaintiff relied upon the assessment as an acceptance of his application for insurance and was injured thereby. Under these undisputed facts the defendant company is not es-topped from setting up as a defense in this case that the company never did agree with the plaintiff to accept his application of November 2, for insurance, and never did agree to insure him. Answer: That is refused. [4]
    5. Under all the facts in this case, there can be no recovery by the plaintiff, and the verdict must be for defendant. Answer: That is refused. [5]
    Verdict and judgment for plaintiff for $1,338. Defendant appealed;
    • Errors assigned among others were (1, 2, 3, 4, 5) above instructions, quoting them.

      T. C. Campbell, for appellant.
    The secretary had no authority to insure plaintiff of to assess him: Powell’s App., 98 Pa. 403; Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Baltimore & Ohio Employee’s Relief Assn. v. Post, 122 Pa. 579; Worthington v. Ry. Co., 195 Pa. 211; Louchheim v. B. & L. Assn., 25 Pa. Superior Ct. 325.

      The assessment being unauthorized and the company having received no benefit from it, there is no estoppel: MillwardCliff Cracker Co.’s Est., 161 Pa. 157; Presbyterian Board v. Gilbee, 212 Pa. 310; Pannebaker v. R. R. Co., 219 Pa. 60.
    The assessment was made by mistake. It was made without knowledge of the previous application for insurance by plaintiff. As a ratification of the act of the agent it was not binding upon the company, having been made without full knowledge of the facts: Tanney v. Tanney, 159 Pa. 277; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6; Sword v. Reformed Congregation, 29 Pa. Superior Ct. 626; Bigelow v. Ballerino, 111 Cal. 559 (44 Pac. Repr. 307); Byer v. Healy, 84 Iowa, 1 (50 N. W. Repr. 70); Seattle v. Liberman, 9 Wash. 276 (37 Pac. Repr. 433).
    The assessment did not relieve the plaintiff of the duty of making inquiry. He was not justified in relying upon the assessment as evidence that the defendant company had accepted his application and that his property was then insured: Cuttle v. Brockway, 32 Pa. 45.
    To constitute an estoppel by matter in pais, it must appear that the party setting up the estoppel will be injured by allowing the truth of the admission to be disproved: Eldred v. Hazlett, 33 Pa. 307; Brubaker v. Okeson, 36 Pa. 519.

      John R. Henninger, for appellee.
    An estoppel will arise either by silence when it is a duty to speak or by some positive word or act or representation which tends to encourage or mislead another and does so encourage or mislead him to his injury, either by causing him to act or by causing inaction: Sullivan v. Colby, 71 Fed. Repr. 460; Logan v. Gardner, 136 Pa. 588.
    The Supreme Court of this state in Chapman v. Chapman, 59 Pa. 214, and restated in Putman v. Tyler, 117 Pa. 570, on page 586, states the principle contended for in these words: “Positive acts tending to mislead one ignorant of the truth, and which do mislead him to his injury are grounds of estoppel, though the party estopped was ignorant of his rights: ” Mentz v. Ins. Co., 79 Pa. 475; Ins. Co. v. May, 2 W. N. C. 43.

      March 3, 1910:
    The evidence clearly indicates that a policy would have been issued to the plaintiff had it not been for the fire; it therefore follows that plaintiff’s property was uninsured at that time on account of defendant’s negligence and the loss, therefore, is the result of the defendant’s negligence, for which it is responsible: Boyce v. Union Dime Permanent Loan Assn., 218 Pa. 494; Cunningham v. First National Bank, 219 Pa. 310; New York Tartar Co. v. French, 154 Pa. 273.
   Opinion by

Orlady, J.,

The plaintiff had a barn insured in the defendant company from 1891 to 1906. A short time prior to the expiration of his last policy, his attention was called to the fact that his policy was about expiring, and W. J. Burton, the authorized agent of the company “for the purpose of receiving applications” solicited a renewal application. The plaintiff was an old man and confined to the house, and for some reason did not notice that his policy had expired until October 29 (a full month after the policy had expired), when he sent for Burton, who on November 2,1906, received from the plaintiff an application for new insurance against loss or damage by fire in the defendant company for the sum of $1,200, for the term of five years, following the second day of November, 1906. On the printed blank furnished by the company it is required that a policy and survey fee of $2.00 is to be paid by the applicant when he signs the application and this requirement was complied with by the plaintiff paying to Burton the stipulated sum of $2.00. On the same paper, under questions to be answered by the agent, are the following: “1. Have you examined the property on which insurance is wanted. Answer: Yes. 2. Are the answers by the applicant all correct so far as you can discern? Answer: Yes. Signed: W. J. Burton, Agent.”

The defendant is a mutual fire insurance company and by a section of its constitution, it is provided, “that the Board of Directors shall appoint suitable persons to act as agents for this company in receiving applications for insurance, and in making a survey of the property, who shall serve for a period of three years. It shall be the duty of the agent of the company to make a correct examination and survey of the property on which insurance is desired, and shall certify the same to the executive committee, which certificate shall answer all questions in the form of application furnished by the board, and shall have the applicant sign the same.”

The defendant’s agent was familiar with the premises, and while there had been some question as to the location of an oil well near to the barn, it was treated both by the plaintiff and by the company’s agent as having been disposed of after notice to and examination by the defendant as not objectionable. It was further provided by the rules of the company that when the application was signed, and the plaintiff paid the $2.00, one-half of that sum was to be retained by the agent for his services* and the other half belonged to the company, and would be accounted for by the agent in an annual statement. About two weeks after signing the application, the plaintiff became anxious in regard to his insurance and wrote to the agent making inquiry in regard to it, and wanted to know why he had not received his policy, and the agent assumed that the plaintiff would receive his policy direct from the company about the same time the inquiry had been made by the plaintiff and that it was not necessary for him to make a direct reply to the plaintiff’s letter. Following this, about November 20, the plaintiff received a postal card dated November 12, 1906, as follows:

“Dear Sir: — Your assessment to the Glade Mill Mutual Fire Insurance Company is $1.80. You will pay the same to the Treasurer, A. Kilpatrick, within thirty days. The treasurer will be at the following places to collect: Callery, December 3d; Mars, December 4th; Maharg, December 10th. Signed by the president and the secretary.”

Knowing that his former policy had expired on September 28, and that his application for new insurance had been signed on November 2, the plaintiff assumed that this assessment was on the new policy he desired to have issued to him. On December 8, the property was totally destroyed by fire, and it is conceded that it was of greater value than the amount mentioned in the policy. Burton,- the agent, was present at the plaintiff’s house, on the day of the fire and after examining the assessment notice, which had been received by the plaintiff accepted from him the assessment of $1.80 mentioned therein he also assumed that it related to the new policy, and the same day forwarded it to the company, with a statement that it was from the plaintiff. On the same day he wrote the following letter to the home office of the company:

“Sir:

“You will find enclosed check for $6.00 for my insurance and R. W. Stewart, $1.80 and $4.20 mine, total $6.00. Would like to know what this assessment is for, and R. W. Stewart’s policy which I sent a month or more ago, he states he has not got, and his barn was burned last night at two o’clock in the morning.”

It developed subsequently that Burton had never forwarded the application to the company, and that the assessment was erroneously made by the proper officer of the company, in assuming that the old policy was still in force, and that this assessment was based on it. On December 12, the defendant returned $1.80, giving as its reason, 1st. Because the policy had expired September 28, 1906 at noon, and no assessment could legally be made on it. 2d. Because the company sent a man to measure the distance from the barn to the well, and he reported that the well was less than the required distance, and he told you then that the well was much within the limit and would make the policy -void. No return was made of “the dollar policy and survey fee” which was retained by the agent of the company.

It is not disputed that the company through its authorized agent knew of the exact location of the oil well on July 4, and an investigation was then made of the situation, and no action was taken by the company to cancel the policy or to give any notice to the defendant of that fact being objectionable. The application was made on a blank -furnished by the company, and the certificate of the duly authorized agent was attached thereto. The policy and survey fee were paid by the plaintiff on November 2, 1906, and after that date the plaintiff knew nothing of the matter until the fire occurred on December 8, when he paid the assessment under the notice issued by the company, and within the time fixed by its terms. Under the undisputed facts, Burton was the proper person to represent the company, and he did act for it within the scope of his authority. His possession of the application was the possession of the company; the sending of the assessment notice was a positive act, and under the finding of the jury encouraged the plaintiff to believe, and actually misled him into believing, that he had a valid insurance in the defendant company, although his policy had not been received by him. This condition resulted, not from any act of omission on the part of the plaintiff which tended in the most remote way to mislead or deceive the company, but was due entirely to the oversight of the agent in not forwarding the application to the home office of the company in due time, when if it had been promptly acted upon, and even rejected, for the reasons subsequently given, he would have had ample time to secure other insurance on his property. The added mistake of the company in sending the notice of the assessment (which it is admitted could not have been legally made on the policy which expired September 28), reasonably misled him to believe that he had valid insurance. The local agent, who was familiar with the company’s methods, was of the same opinion. The case was fairly submitted to the jury as follows: “ If by their own act they led him to believe that he was insured in their company, even if that act be the result -of a mistake on their part, it was a mistake of the company and not of the plaintiff. If by their act they made him believe that he was insured in answer to a proposition submitted for insurance which was in their possession, then, we think, under these circumstances the company would be estopped from saying to the plaintiff that he did not have insurance in the defendant company.” The question was purely one of fact and was properly submitted to the jury. It was held in Ripka v. Mutual Fire Insurance Company, 36 Pa. Superior Ct. 517, “No estoppel can arise either from the company’s failure to act upon and formally reject the application or from the failure of its soliciting agent to forward it to the company, where, before either of the things can be done the property is totally destroyed by fire and the soliciting agent immediately tenders to the applicant the policy fee he had paid.” We feel that the facts of this case are very materially different, in that the neglect of the agent in forwarding the application was supplemented by the act of the company in sending the assessment notice, which reasonably induced the plaintiff to believe that his application had been accepted, and that his policy was in force.

There was no suggestion that the plaintiff did not act in good faith, and the defense of the company is entirely founded upon the mistake of its soliciting agent, coupled with the equally important mistake of its home office, neither of which should the plaintiff be held responsible for, nor should he suffer loss by reason thereof.

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


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    McCarthy, Appellant, v. Murray.

      Master and servant — Compensation—Evidence—Case for jury.

    In an action against an executrix, who was sole legatee of her husband, to recover compensation for services, where the plaintiff testifies positively, although contradicted by the defendant, that immediately after the decedent’s death the defendant promised to pay him the same compensation that he received from the decedent, which was a certain amount per week and a certain stated extra compensation at the end of the year, and the plaintiff’s testimony as to the extra compensation, there being no dispute about the weekly wages, is corroborated to some extent by declarations of the executrix, and by the fact that plaintiff did night work as an extra service, the case is for the jury, and if a verdict and judgment is rendered for plaintiff it is error for the court to set it aside and enter judgment for defendant non obstante veredicto.
    Argued Oct. 5, 1909.
    Appeal, No. 243, Oct. T., 1908, by plaintiff, from judgment, of O. P. No. 3, Phila. Co., June T., 1903, No. 4,206, for defendant non obstante veredicto in case of Patrick J. McCarthy v. Elizabeth L. Murray, trading as James J. Murray & Co.
    March 3, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover compensation for services. Before Ferguson, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,005.50. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      John W. Speckman, for appellant.

      E. Cooper Shapley, for appellee.
   Opinion by

Orlady, J.,

The plaintiff had been employed as a superintendent of a glass manufacturing plant owned and operated by James J. Murray, for nearly two years prior to November 10, 1901, on which date Mr. Murray died. During Murray’s life, the plaintiff received a salary of $30.00 per week, which was.paid weekly, and it was alleged that he was entitled under an agreement to an additional annual compensation of $500, which was to be paid at the end of each year. After the death of Mr. Murray, the business was conducted by his widow, who was his sole legatee and executrix, and a few days-after the husband’s death, a conversation took place between the plaintiff and defendant in which it is alleged by the plaintiff, that he was directed to continue in the same relation he had held with Mr. Murray, and with the distinct understanding that his compensation was to be as theretofore. The weekly payments were promptly paid, but a controversy arose as to the $500 item of the claim, and this suit was brought to recover it.

The trial resulted in a verdict for the plaintiff of $1,005.50, which was subsequently set aside by the trial judge, who held that there was no evidence of any promise or agreement on the. part of Mrs. Murray to pay the extra compensation to the plaintiff for the years 1902 and 1903, and a judgment was entered for the defendant non obstante veredicto. The whole question turns on the sufficiency of the evidence to establish the claim of the plaintiff, and after a careful examination of this record, we are constrained to reverse the judgment, for the reason that there was ample evidence to warrant the jury in returning a verdict in favor -of the plaintiff, who testified positively that Mrs. Murray told him the morning after Mr. Murray’s death that she would pay him the same salary weekly, and the same extra compensation at the end of every year as he had received before the death of her husband. The defendant testified that Mr. Murray had told her all about the business whenever he came home, and she knew every detail of it. The $500 was to represent an extra salary, the same as had been paid during Mr. Murray’s lifetime. The plaintiff further testified that Mr. Murray had paid a special sum to him for twelve or thirteen years prior to his death and was increasing the amount each year. Special services were shown, such as working at nights to nine and ten o’clock and on Sundays. Another witness called for the plaintiff testified that in January, 1903, Mrs. Murray told Mm on the factory floor, that Mr. McCarthy was so anxious that the business should succeed that he had not drawn his extra salary, or any portion of it since the death of Mr. Murray.

The plaintiff’s testimony related to four distinct interviews with the defendant, which, if believed, could only mean that the defendant had promised to pay the amount claimed by Mm. The defendant admitted having the conversations, but denied the construction placed upon them by the plaintiff, and insisted that she had never made any agreement with the plaintiff to pay him any salary beyond $30.00 a week. The analysis of the testimony as made by the court below, omits some material facts, which to our mind were properly before the jury and had a direct bearing on the case. The rule of law in such cases is quite plain and must be followed- It is not within the province of the court to say, whether certain testimony would actually prove a fact, provided its reasonable tendency is to prove it. If it, with other facts in the case, tends to establish a result material to be established by the parties offering it, it should be admitted and should go to the jury. It is for them to pass on it under proper instructions from the court. When proof of a fact depends upon oral testimony, it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court, to award a new trial if they should deem the verdict contrary to the weight of the evidence: Pratt v. Jewelry Co., 69 Pa. 53; Colonial Trust Company v. Getz, 28 Pa. Superior Ct. 619. If it shall appear that a binding direction for either party would have been proper at the close of the trial the court may enter judgment later, with the same effect, but, on the other hand, if it should appear that there was a conflict of evidence on a material fact, or any reason why there could not have been a binding direction then, there can be no judgment against the verdict subsequently. The act of 1905 does not disturb the settled line of distinction between the clearly defined provinces of the court and the jury. The act is capable of usefulness in allowing time for mature consideration, but it should not be carried beyond its legitimate intent: Casey v. Canning, 39 Pa. Superior Ct. 94. In this case the testimony was directly in conflict; the jury had the right to consider all that was properly before it, as well as the reasonable inferences to be drawn from the testimony. They had full opportunity of passing upon the credibility of the witness as well as the subject-matter of the testimony, and their conclusion should not be disturbed.

The assignments of error are sustained, the judgment is reversed, the record is remitted to the court below, and judgment to be entered on the verdict.


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    Kauffman v. Central Railroad Company of New Jersey, Appellant.

      Carriers — Common carriers — Injury to goods — Evidence—Case for jury.

    In an action against a railroad company to recover damages for injury to a case of shirt waists, the case is for the jury where the evidence tends to show that when the goods left plaintiff’s factory, they were fresh, clean and unsoiled; that they were properly packed in a dry and well-prepared box; that they were hauled a short distance from the factory to defendant’s station on a clear day; that according to the station agent’s testimony the case was dry and in good condition; that there was an unexplained and unusual delay of one day in the arrival of the goods; and that it rained during this day while the case was in possession of the carrier.
    Argued Oct. 6, 1909.
    Appeal, No. 12, Oct. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., March T., 1907, No. 4,500, on verdict for plaintiffs in case of Louis Kauffman and Louis Harris, trading as Kauffman & Harris, v. Central Railroad of New Jersey.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a case of shirt waists. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $456.75. Defendants appealed.

      Error assigned amongst others was in refusing binding instructions for defendants.

      Arthur G. Dickson, with him John G. Lamb, for appellants.
    Any presumption that might have arisen from the receipt of defendants’ agent for the case in apparent good order at Rosenhayn station, was met and overcome by the delivery of the same, in like apparent good condition, by the Atlantic City Railroad Company, a connecting carrier, to the plaintiffs’ driver at Philadelphia.

      Proof of the condition of the goods when they are delivered to one carrier is not proof of their condition when delivered to the connecting carrier in a suit against the latter. This rule has been very well stated by Campbell, J., in the case of Railroad Company v. Kirkwood, 45 Mich. 51 (7 N. W. Repr. 209). See also the case of Marquette, etc., Railroad Company v. Langton, 32 Mich. 251.
    If there is no proof on the part of the plaintiffs as to the condition of the goods when delivered to the carrier, the presumption is that they were in the same condition when so delivered by the carrier to the consignee: St. Louis, etc., R. R. Co. v. Neel, 56 Ark. 279 (19 S. W. Repr. 963).
    The dampness of the case in spots on the outside, two days afterwards, showed conclusively that it came from the wet condition of the contents, as that is just what would have been bound to happen if wet goods were placed in a dry case, and it explained the testimony that the outside of the case was dry while in the carriers’ possession.
    When the testimony is not in itself improbable, is not at variance with any proved or admitted facts, or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set the verdict aside: Lonzer v. R. R. Co., 196 Pa. 610; Devlin v. Light Co., 198 Pa. 583; Heh v. Gas Co., 201 Pa. 443; Cromley v. R. R. Co., 211 Pa. 429; Keiser v. R. R. Co., 212 Pa. 409; John Hancock Ice Co. v. R. R. Co., 224 Pa. 74; Dunham v. McMichael, 214 Pa. 485.

      Henry N. Wessel, with him Alfred Aarons, for appellees.
    It having been shown that the goods were in good condition when packed — it will be presumed that such condition continued until the contrary is established: Smith v. Railroad Co., 43 Barb. 225; Bread v. Ry. Co., 79 Iowa, 518 (44 N. W. Repr. 800); Laughlin v. Railway Co., 28 Wis. 204; Dixon v. Railroad Co., 74 N. C. 538; Railroad & Banking Co. v. Bayer, 91 Ga. 115 (16 S. E. Repr. 953).
    If for any reason an injurious accident happens to or by reason of that which the carrier provides for the transportation, the law which imposes the exercise of the utmost care upon him, presumes the accident to be due to the manner of that care and puts upon him the duty of successfully relieving himself from that presumption: Trace v. Penna. R. R. Co., 26 Pa. Superior Ct. 466; Rhymer v. R. R. Co., 27 Pa. Superior Ct. 345; Gross v. Express Co., 35 Pa. Superior Ct. 467; The T. A. Goodard, 12 Fed. Repr. 174.
    March 3, 1910:
   Opinion by

Head, J.,

The argument of the learned counsel for appellant aims to sustain the proposition that the evidence produced at the trial left no material question of fact to be submitted to the jury. The prayer for binding instructions and the subsequent motion for judgment notwithstanding the verdict put the defendant in the attitude of demurring to the whole of the evidence. The propriety of the action of the learned trial court in submitting the case to the jury must therefore be determined rather by a review of the testimony than by a discussion of legal principles concerning which the parties are not at variance.

That the goods of the plaintiff which had been transported by the defendant company reached the former in a damaged condition is admitted. The evidence excludes the idea that such injury could have occurred in the brief period of time while the goods were being hauled from the dock or pier in Philadelphia to the place of business of the plaintiffs. There would seem, then, to be room for but one of two theories, to wit, that the goods were damaged before they reached the agent of the defendant at the shipping point in New Jersey, or else that the loss occurred while the goods were being transported by the defendant.

The property consisted of about thirty-eight dozen of shirt waists. They were manufactured and packed for shipment at a factory in New Jersey about thirty miles from Philadelphia and from two to three miles from Rosenhayn station where they were delivered to the defendant carrier. According to the testimony of several witnesses the goods were clean, new and fresh when they were packed at the factory on the morning of October 3,1906. They were packed in a substantial wooden case which was first lined with paper and then securely nailed, properly marked with the name and address of the plaintiffs and turned over to a drayman or expressman to be delivered to the railroad company at the station named. The agent of the defendant company, called by the defendant, testified that the case was received by him at the station platform about one o’clock in the afternoon of the same day; that the weather was fine, and that "the condition of the case was dry — in good condition.”

The testimony produced by the defendant tended to establish that the ease was duly loaded on a car attached to a train which left the shipping station at about half past three. The car is then traced along its route until it finally arrived on a float at the dock or pier of the defendant company on the Philadelphia side of the river at about half past two in the morning of October 4. There is testimony that goods consigned to the plaintiffs from that factory were usually received on the day following shipment; that the plaintiffs, needing the goods, and being, advised of their shipment, made inquiry on the 4th concerning the arrival of the goods, and were informed by the defendant that no such goods had arrived. Notice of the arrival of the ease was sent to the plaintiffs about noon on the following day, the 5th. It was at once hauled to their premises in the manner already stated, when it was found that the case itself was damp and wet. Upon opening it the goods were found to be wet, damaged, and badly soiled, apparently from the action of water operating on the mixture of lampblack and turpentine used in marking the case on the outside with the name and address of the consignee. As already stated, there is no dispute as to the fact of the damage or the extent of the plaintiffs’ money loss. .

The plaintiffs’ right to recover the amount of this loss from the defendant undoubtedly was dependent on their ability to produce evidence tending to establish the fact that the goods were delivered to the carrier in good condition.' But in order to successfully carry this burden, it was not of course necessary to show by direct evidence the condition of the goods at the precise moment when the agent of the defendant received it. It would be impracticable if the rule of the law would be satisfied with nothing less than such direct positive proof. There is abundant evidence that both case and contents were in perfect condition when they left the factory. The distance from factory to station was short; the day was fine; the testimony of the defendant’s agent as to the appearance of the case upon its arrival at the station was sufficient to warrant the jury in inferring that it had not been subjected to contact with water in that brief period. As already stated, the package, which under these conditions was delivered to the defendant early in the afternoon of October 3, and which, as it contends, reached its dock in Philadelphia early in the morning of the 4th, was not turned over to the plaintiffs until noon or afternoon of the 5th. Where it had been in the meantime, to what conditions of weather it had been exposed, the evidence does not with anything like certainty disclose. It is reasonably certain that immediately after the case left the dock or pier, where it must ■have been for considerably over a day, it was found to be damp and wet, whilst the condition of its contents was as we have already stated.

The existing conditions might have occurred if the goods had been originally placed in the case wet, soiled and damaged. In that event the dampness on the outside of the case would be the effect of the conditions within. That this was the theory of the defendant throughout the case is shown by the following extract from the printed argument of its learned counsel: “The dampness of the case in spots on the outside two days afterwards showed conclusively that it came from the wet condition of the contents, as that is just what would have been bound to happen if wet goods were placed in a dry case.” For the purpose of inducing the jury to adopt that theory of the case, the argument would be more or less persuasive. But in support of a point for binding instructions or a judgment n. o. v., it is ah argument against the fact.

For the purpose of correctly disposing of the question now before us we must assume the truth of the testimony of the witnesses who declared that the goods were fresh, clean and unsoiled when they were properly packed in a dry and well prepared box. There was great difficulty, therefore, in escaping the other inference drawn by the jury from the facts in evidence, viz., that the injury to the goods inside the case was the effect, not the cause.

Taking then the condition of the case when it arrived, the unexplained and unusual delay in its arrival, the fact that it had rained during the day while the case was in the possession of the defendant carrier, that the goods had been freshly packed in proper condition but a short time before they were delivered to the carrier, and that the agent of the latter testified that the case was received on a fine day, dry and in good condition, we feel obliged to say that there was evidence which warranted the submission of the case to the jury and sustained the conclusion reached by that tribunal. This being true, the assignments of error must be overruled and the appeal dismissed.

Judgment affirmed.