text:
    Hayes, Appellant, v. German Beneficial Union.

      Corporations — By-laws—Definition of by-law — Beneficial association.

    A by-law is a rule or law adopted by a corporation or association for the regulation of its own action and concerns, and of the rights and duties of its members among themselves. The term has a peculiar and limited signification, being used to designate the orders and regulations which a corporation, as one of its legal incidents, has power to make, and which is usually exercised to regulate its own action and concerns, and the rights and duties of its members amongst themselves..
    The by-laws, rules and regulations of a corporation or society are essentially legislative in their character. Like all other legislative acts they are affected by the presumption that they are never intended to be retroactive unless such intent be clearly expressed.
    Where an amendment of the by-laws of a beneficial association reducing the amount of benefits, contains no language necessarily indicative of an intent to make it retroactive, and there is no effort shown on the part of the association to take up and reform its outstanding contracts, or to notify holders that their certificates had been materially modified, the courts are warranted in concluding that the amendment was intended to be prospective only.
    Where an applicant for membership of a beneficial association has the option to purchase indemnity in any one of four classes, and he selects the one apparently securing to him the largest fund at the end of ten years and obligates himself to pay the highest assessment, it seems unreasonable to draw from the general terms of the application, the conclusion that the member at the same moment, and in the same act deliberately consented that the society might at any time before the actual maturity of his certificate, reduce the amount thereof to any extent it might deem advisable.
    An applicant for membership in a beneficial association selected one of four classes of indemnity that would apparently secure to him the largest fund at the end of ten years, and obligated himself to pay the highest assessment. About two years after the date of the member’s certificate the by-laws were changed, so as to materially reduce the amount payable upon his certificate. The application for membership contained this stipulation: “I agree, if accepted, to faithfully abide by all the laws, rules and regulations of the Supreme District, of this or any other district of which I may become a member,- and all additional laws and amendments that may hereafter be enacted by the supreme or said district of the Union.” After the amendment no effort was made to take up and reform the outstanding contract, and no notice was given to the holders thereof that their certificates had been materially modified. Held, that the member’s rights under his original contract were not modified by the amendment.

      Beneficial associations — Insurance—Acts of April 4, 1873, P. L. 20, April 29, 1874, P. L. 73, and April 6,1893, P. L. 10.
    A corporation of the first class organized under the act of April 29, 1874, for “the maintenance of a society for beneficial or protective purposes to its members from funds collected therein,” is not an insurance company, and its certificates of membership are not contracts of insurance within the meaning of the Act of April 4, 1873, P. L. 20, entitled “An act to establish an insurance department.”
    There, is nothing in the Act of April 6, 1893, P. L. 10, indicating an intention to authorize beneficial societies to become insurance companies, or to conduct the business of insurance. The fact that a beneficial association accepted the terms of the act does not in anywise impair a contract of membership entered into before the passage of the act.
    Argued April 9, 1907.
    Appeal, No. 83, April T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 652, on verdict for plaintiff in case of Dennis Hayes v. German Beneficial Union.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover death benefits. Before Kennedy, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $486.46. Plaintiff appealed.

      Error assigned was in giving binding instructions for plaintiff for $390 and interest.

      William Yost, for appellant.
    — Societies which insure against sickness, accident or death (all of which are proper subjects of insurance), are nevertheless held to be beneficial societies and their certificates, though strictly speaking insurance policies, are held to be unaffected by the laws relating to insurance certificates and policies. See Dickinson v. A. O. U. W., 159 Pa. 258; Lithgow v. Knights of Maccabees, 165 Pa. 292; Fischer v. Legion of Honor, 168 Pa. 279; Algeo v. Fries, 27 Pa. Superior Ct. 157.
    The Supreme Court in ruling upon mutual insurance policies has always maintained a plain distinction between the corporate rights and the covenant rights of the members. The former may be changed and regulated from time to time by changing the constitution and by-laws. But the covenant rights are in the nature of a contract, and cannot be modified or taken away: Insurance Co. v. Connor, 17 Pa. 136; Mutual Accident & Life Association v. Kayser, 14 W. N. C. 86; Rosenberger, Light & Co. v. Washington Fire Insurance Co., 87 Pa. 207; York County Mutual Aid Assn. v. Myers, 11 W. N. C. 541; Hale v. Equitable Aid Union, 168 Pa. 377.
    And where there is no certificate, or special contract, a member’s sick benefits cannot be cut down by an alteration of the by-laws after his illness begins: Becker v. Berlin Beneficial Society, 144 Pa. 232.
    Even if the language were doubtful, it is held in construing certificates of membership of beneficial societies as well as mutual insurance policies that doubtful and ambiguous terms are to be construed most strongly against the company: Metropolitan Life Ins. Co. v. Drach, 101 Pa. 278; York County Mutual Aid Assn. v. Myers, 11 W. N. C. 541; Merrick v. Ger-mania Fire Ins. Co., 54 Pa. 277; Burkhard v. Travelers’ Ins. Co., 102 Pa. 262; Niblack on Benefit Societies, sec. 143, page 285; N. W. Mutual Life Co. v. Hazelett, 105 Ind. 212.
    February 28, 1908:

      Charles W. Dahlinger, for appellee.
    — That the by-laws of the defendant corporation may be changed, must be conceded: • Chambers v. Knights of Maccabees, 200 Pa. 244; Hale v. Equitable Aid Union, 168 Pa. 377.
    Defendant corporation contends that the certificate in question is a policy of insurance: Com. v. Equitable Ben. Assn., 137 Pa. 412.
    The rule laid down in Fowler v. Scully, 72 Pa. 456, and the cases there cited fully apply: Weed v. Cuming, 12 Pa. Superior Ct. 412.
    The case of Rockhold v. Canton Masonic Beneficial Society, 129 Illinois, 440, was much like the present one.
   Opinion by

Head, J.,

In this action the plaintiff bases his right to recover on a written contract or certificate dated May 12, 1892. The due execution and delivery of the contract are not denied nor is it alleged that the plaintiff has failed, in any respect, to discharge every obligation imposed on him therein or thereby. The defendant is a beneficial society or fraternal union and was duly incorporated on April 13,1892, for the purpose of maintaining “a society for the payment of periodical benefits to its members in the cases of sickness or disability, from funds contributed by the members; and also from funds contributed in like manner to pay benefits to those who have been members for a continuous fixed period, and to pay benefits to heirs of deceased members.”

The constitution and by-laws duly adopted by the corporation provide for four classes of beneficiaries, the members of each class receiving pecuniary benefits for the same causes and under like conditions, but the maximum amount of such benefits varied from $400 in the lowest to $1,000 in the highest class. The assessment to be paid likewise ranged from $1.00 to $2.50. The plaintiff entered the highest class, and received a certificate in which the defendant stipulates, inter alia, as follows: “ Sixth: In case the said member shall continue to pay all assessments, dues and demands, which may be legally made against him or this certificate, for the full term of ten years and ninety days , from its date, and shall in all particulars maintain himself in good standing in the Union, then the said member shall be entitled to a sum not exceeding the principal amount named herein, less the amounts he has already received as benefits from the Union, on account of sickness or other disability, or otherwise, with accumulated interest from date of said payment to date of expiration of certificate at six per cent per annum.” One-half of the entire revenue of the association, all of which was to be derived from the assessments paid in by the members, was set apart in a special fund called the “reserve fund,” to be invested, which, with its accumulations, was to provide for the payment of such benefits above described as might mature under the terms of the certificate quoted.

The plaintiff, as already stated, having complied with every obligation imposed on him by the terms of his certificate for the full period of ten years and ninety days, demanded the benefits secured to him thereby, and his deihand being refused, brought tins action. The association resists the payment of the full amount that would admittedly be due, according to the plain terms of the contract as it was actually executed, on the ground, first: that by an amendment to the constitution and by-laws of the society adopted in 1894, about two years after the date of the plaintiff’s certificate, its liability under such certificate was so changed and reduced that it would amount to but $390. It was not alleged that the plaintiff, as one of two parties to a contract, ever assented to such change, but it is contended that as the amendment was regularly adopted in the manner provided by the original constitution, it became binding on the plaintiff as well -as every other member of the society. And this contention is especially urged because the application made by the plaintiff, on which his certificate issued, contained the following stipulation, viz: “I agree, if accepted, to faithfully abide by all the laws, rules and regulations of the Supreme District, of this or any other District of which I may become a member, and all additional laws and amendments that may hereafter be enacted by the supreme or said district of the Union.”

It must be conceded that the defendant, like every other corporation, possessed the inherent power of self government. Its by-laws are the channels through which this power is exerted and declare the corporate will as to the manner in which the corporate functions are to be exercised and such other mátters as to which it may properly and lawfully legislate. Of course the power to make such laws carries with it the power to alter and amend them in the manner prescribed. Voluntary acceptance of membership in such corporation necessarily involves and implies the assent of each member to every amendment to the by-laws the substance of which is the proper subject of such law, and which has been formally and regularly adopted. It is difficult to see how an express declaration by an applicant of his willingness to be bound by existing by-laws and future amendments thereto can add anything to the like obligation necessarily assumed in the act of becoming a member.

But such a corporation also has the power to enter into contracts in furtherance of the objects for which it was created and it may lawfully assume such contractual relations with one of its members as well as with a stranger. With the' issue of the certificate on which this action is founded the defendant society undoubtedly entered into a contract to which the plaintiff became the other contracting party. That the defendant society, in the exercise of its undoubted right to amend its own by-laws, could, without the assent of the plaintiff, lessen its contractual obligation thus assumed, we are not asked to say. But it is urged upon us that the plaintiff, by virtue of the stipulation quoted from his application, did in fact assent, not only to the amendment of 1894, but to any other like ones that might be'adopted during the life of his certificate; so that such amendments, even if they finally resulted in extinguishing entirely the defendant’s liability, must be held to relate back to and be read into the original contract. The intrinsic importance of the question under existing conditiqns and the frequency with which it is urged upon courts seem to demand a somewhat elaborate discussion of it.

Of course it must be conceded that the parties to a forward contract may agree therein that one of them could, thereafter, at pleasure, modify its terms, reduce its obligations or cancel it altogether, even after it had been partially performed by the other. But surely a court would incline to such a construction of a contract, giving to one party such an advantage over the other, only when impelled to do so by the presence, in the contract itself, of language unmistakably evincing the consent of the latter to the inequality that would follow. Words of merely doubtful import or expressions indicative as well of some different intent would not suffice to support such a construction. Can we then fairly conclude that because this plaintiff expressed his willingness to abide by the by-laws existing when his contract was made and the amendments thereto that might subsequently be adopted, he intended to agree that, after he had partially performed, the defendant could, at its pleasure, or as often as it deemed its welfare would •be promoted thereby, adopt an amendment to its by-laws reducing the amount secured to the plaintiff by his contract and hold him bound thereby? The answer to this question is enveloped in some obscurity because the decisions of the courts of the different states on the subject are not in harmony. But, after a somewhat exhaustive review of them, we are led to the conclusion that if we follow the sounder reasoning and more •potent authority we must answer the question in the negative. This results in the first place from a consideration of the nature and character of a by-law. This term has been often defined “A by-law is a rule or law adopted by a corporation or association for the regulation of its own action and concerns, and of the rights and duties of its members among themselves.” Am. & Eng. Ency. of Law, Yol. 5, p. 87. This term (by-law) has a peculiar and limited signification, being used to designate the orders and regulations which a corporation, as one of its legal incidents, has power to make, and which is usually exercised to regulate its own action and concerns, and the rights and duties of its members amongst themselves.” Per Shaw, C. J., in Com. v. Turner, 55 Mass. 493. In Insurance Co. v. Connor, 17 Pa. 136, Lewis, J., said: “A corporation has no power to invade the rights of individuals. A by-law when used for this purpose is totally misapplied. The design is to regulate the government of the corporation, not to operate on or affect injuriously the rights of strangers. . . . But in addition to his rights and duties as a corporator, Cornelius Connor stands before us as a party to a covenant executed by himself on the one part and the insurance company (mutual) under its corporate seal on the other. His rights under that covenant are as fully protected by law from the corporate action of the company as if he were a stranger. It affects not his rights under that contract, that by virtue of it, he becomes a member of the company, and, as such, subject,” etc. Interpreting then the language of the application, in the light of the foregoing authorities, and giving to the expressions “laws, rules and regulations” the normal significance that the law gives to them, we may readily conclude that the contract exhibits no clear and unequivocal consent of the plaintiff to the exercise of any such power, by the defendant, as would be manifested by the enforcement of the amendment of 1894.

Again the by-laws, rules and regulations of a corporation or society are essentially legislative in their character. Like all other legislative acts they are affected by the presumption that they áre never intended to be retroactive unless such intent be clearly expressed. “A member may know that certain amendments to the by-laws have been passed, or he may even vote for them, but it does not follow from this that he consents that they may have a retroactive force, and may modify a contract which he holds with the society.” Niblack on Benef. Soc. 61. This principle is strongly stated in Indemnity Co. v. Jarman (U. S. Circuit Court of Appeals), 104 Fed. Repr. 638, and indeed is so universally recognized that a citation of authorities to support it is needless. In the present case the amendment of 1894 contains no language necessarily indicative of an intent to make it retroactive and this, coupled with the fact that the record discloses no effort on the part of the society to take up and reform its outstanding contracts, and not even a notice to the holders thereof that their certificates had been materially modified, affords, we think, ample warrant for the conclusion that the amendment should be regarded as prospective only.

Furthermore it seems unreasonable to draw, from the general terms of the application, the conclusion that the plaintiff, having the option to purchase indemnity in any one of four classes, selected that one apparently securing to him the largest fund at the end of ten years and obligating him to pay the highest assessment, and at the same moment and in the same act deliberately consented that the society might, at any time before the actual maturity of his certificate, reduce the amount thereof ter any extent it might deem advisable.

Finally, we conclude that the position of the present plaintiff is supported by the clear weight of authority. In Indemnity Co. v. Jarman, supra, a case in which the application contained language precisely similar to the one now before us, the court said: “ In the second place, we observe that it is not a reasonable interpretation of the clause above quoted from the application that the applicant intended in advance to assent to any changes in its constitution and by-laws which the company saw fit to make, even if they reduced the amount of indemnity which the company had promised to pay in the event of his death, and thereby lessened the value of hi's policy. He was to occupy a dual relation to the company — first as one of its members, and second, as any other individual having a contract with it,” etc. Many cases are cited supporting the conclusion there reached.

In Newhall v. Legion of Honor, 181 Mass. 111, Holmes, C. J., construing an express stipulation that the member should comply with all by-laws “now existing or hereafter adopted,” said: “But the plaintiff’s rights do not stand on the by-laws alone. They stand also upon express contract. . . . Compliance in this connection means doing what the by-laws may require'the member to' do, not submission to seeing his only inducement to do it destroyed. . . . Whatever compliance with the bylaws may be construed to mean, it does not mean absolute submission to whatever may be enacted in good faith, and it does not extend to permitting a direct deduction from the sum which, on the face of the certificate, any ordinary man would be led to suppose secure.”

In Hale v. Equitable Aid Union, 168 Pa. 377, the exact question came before our own Supreme Court. In her. application the plaintiff there had declared, “I further agree to accept said beneficiary certificate subject to such laws, rules and regulations as now exist or may hereafter be adopted,” etc. By an amendment to the by-laws adopted some years after the issue of her certificate the society undertook, not indeed to reduce the sum secured to her in her contract, but to change the times and terms of payment. The court declared that such an amendment could not in any way affect her rights under her contract, and expressly adopted and approved the following language used by the trial court, vizA contract between an association, such as the defendant, and one of its members cannot be impaired or altered by either of the parties thereto, except so far as the power to do so is reserved. The benefit certificate was accepted by plaintiff, subject to the right of the corporation to amend its by-laws and to change the contract in so far as the by-laws make it, but not in-so far as the contract is made by the benefit certificate itself.” In the case now before us the whole of the contract on which the plaintiff sues is contained in the certificate itself. It needs not the aid of any by-law to support it. The case just cited must therefore be decisive of the question we have been considering. It has been recognized as the settled law of this state by the U. S. Circuit Court of Appeals for the Eastern District of Pennsylvania in Legion of Honor v. Getz, 112 Fed. Repr. 119, in which the precise question here involved was disposed of in harmony with and on the authority of Hale v. Equitable Aid Union. But, it is argued, the binding force of that decision has been weakened by the later utterance of the same court in Chambers v. Knights of Maccabees, 200 Pa. 244. We do not think so. In the later case the opinion of the lower court, adopted by the Supreme Court, declares that the case is distinguishable from and not intended to affect the decision in the Hale case. And the cases do differ in this important particular. In the Chambers case there was in existence, at the time the certificate issued, a by-law avoiding the contract if the member committed suicide within one year. He was affected with notice of this and his contract in this respect appeared only in the by-laws and not in his certificate. The company could amend such a by-law and extend its time limit and to this extent modify the original contract in so far as it was made by the by-laws. And especially so as the law was aimed not at a reduction of the company’s liability, but at the manner in which the member must act or refrain from acting. The law as declared in the Hale case must still be held to be the law of the present one. The plaintiff’s contract must, therefore, be construed as if the amendment of 1894 had never been passed, and there seems to be no dispute between the parties that the amount due thereunder, if the contract as it was executed can be enforced, is $1,000 and interest.

But payment of this sum is further resisted by the defendant for the reason that “the certificate, at the time of its issuance and until May 25,1893, the time when the defendant corporation accepted the provisions of the Act of April 6,1893, P. L. 10, was null and void and of no effect, the issuance of the same by the defendant corporation being forbidden by law.” This contention is based on the proposition that the contract evidenced by the certificate in this case, was, in essence and substance, a contract of insurance, and that by the Act of April 4, 1873, P. L. 20, entitled “An Act to establish an Insurance Department,” it was made “unlawful for any person, company or corporation to negotiate, any contract of insurance, or to effect an insurance .... without complying fully with the provisions of this (said) act.” To allege that the defendant, a beneficial society, may not lawfully engage in the business of insurance, is only another way of stating >the general proposition that every corporation must confine its operations within the limits of the purposes for which it was created. But to assert that the defendant has no power to enter into a contract, which, if made by an insurance company, could be properly designated a contract of insurance, seems to me to raise quite a different question. Our legislature in the Act of April 29, 1874, P. L. 73, has expressly authorized the creation of corporations for “the maintenance of a society for beneficial or protective purposes to its members from funds collected therein,” as well as insurance companies. But it placed a beneficial society in the first of the two great classes into which all corporations are divided, viz.: a corporation not for profit, whilst the insurance company is ranked in the second class; thus declaring that herein is to be found the true distinction between them, that by this sign ye shall know them. That there is a more or less marked similarity in the commercial aspects of the business which both a beneficial society and an insurance company must of necessity conduct, in order that the one may distribute its benefits, the other pay its indemnity following the sickness, injury, death or other contingency, upon the happening of which the benefit or indemnity becomes payable, furnishes no warrant for the conclusion that either corporation is wrongfully engaged in the transaction of business which the other alone could lawfully conduct. This distinction between the character and operations of a beneficial society and the similar but yet fundamentally different ones of an insurance company has been clearly pointed out by Mr. Justice Clark in Com. v. Equitable Ben. Assn., 137 Pa. 412, thus: “To grant indemnity or security against loss, for a consideration, is not only the design and purpose of an insurance company, but is also the dominant and characteristic feature of the contract of insurance. What is known as a beneficial association, however, has a wholly different object and purpose in view. . . . The benefits, although secured by contract, and for that reason to a limited extent assimilated to the proceeds of insurance, are not so considered. . . . Such societies have no capital stock. They yield no profit, and their contracts, although beneficial and protective, altogether exclude the idea of insurance, or indemnity, or of security against loss. There were many of these societies in existence at the time of the passage of the act of 1874 in this state; the character of their business was a matter of common knowledge, and it was doubtless to societies of this character the ninth clause of the second section of the act of 1874 was intended to apply.” This language has been adopted and approved in many later cases: Fischer v. Legion of Honor, 168 Pa. 279; Dickinson v. A. O. U. W., 159 Pa. 258; Algeo v. Fries, 27 Pa. Superior Ct. 157; Lithgow v. Knights of Maccabees, 165 Pa. 292, in which it was held “the certificate of membership of a beneficial association is not an insurance policy within the meaning of the Act of May 11, 1881, P. L. 20.”

Whilst, therefore, it cannot be denied that, in many practical aspects, the work of a beneficial society, engaged in “protecting” its members from the injurious consequences of some of the ills that befall suffering humanity, closely resembles that of an insurance company “indemnifying” against the same consequences, yet, in the eye of law, the two bodies are fundamentally different, and there is abundant reason for holding, under the cases cited, that the certificate of the plaintiff in this case was not an insurance policy or a contract of insurance within the meaning of the act of 1873. It was not, therefore, forbidden by that act, which intended only to deal with the business of insurance, technically so known and called, but was a valid contract expressly authorized by the very terms of defendant’s charter.

It is true that the legislature, in 1893, enacted a general law “regulating the organization and incorporation of secret fraternal beneficial societies .... and protecting the rights of members therein.” We cannot discover, either in its title or the preamble reciting the mischief it designed to cure, any evidence that this act intended to authorize beneficial societies to become insurance companies, or to conduct the business of insurance. It did not deal with the business of insurance or legislate for companies engaged in it. The two classes of companies remained as distinct after the passage of that act as before it. Whilst it permitted any beneficial society theretofore incorporated to bring itself within the provisions of the act by filing a formal declaration of its acceptance thereof, it was in no sense retroactive. So much has been expressly decided. Wolpert v. Grand Lodge, 2 Pa. Superior Ct. 564; Thomeuf v. Knights of Birmingham, 12 Pa. Superior Ct. 195. Neither the act itself nor the subsequent acceptance of its provisions by the defendant, affected or in anywise impaired the obligation of the plaintiff’s contract entered into before the passage of the act.

We think, therefore, the learned trial court should have affirmed the plaintiff’s first point and directed the entry of judgment for $1,000 with interest from August 12,1902.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Link v. Bergdoll, Appellant.

      Promissory notes — Indorsement—Protest—Notice of dishonor — Affidavit of defense — Practice, C. P.

    A contract of indorsement, when made, is neither a primary nor an absolute one. It is secondary and conditional. .It is but an agreement for future liability upon and after the happening of certain contingencies. > These are nowhere described in the body of the instrument indorsed, but inhere, ex lege, in the contract created by the simple act of indorsement. They are (a) presentation for payment at the time and place designated by the parties or the law for that purpose; (b) refusal to pay by the party or parties primarily bound; (c) prompt notice of such-refusal to the indorser, whose liability then, but not until then, becomes fixed.
    As a consequence he who seeks to recover on a contract of indorsement must aver the happening of each and every one of these essential facts or his statement will be demurrable. And, per contra, where a defendant denies, under oath, the existence of any one or more of the same facts, the affidavit is sufficient to put the plaintiff to his proofs before a jury.
    In an action against an indorser of a promissory note an affidavit of defense is sufficient which declares: “That no notice of the dishonor or protest of said note was given to this deponent by the plaintiffs in this case, or the notary who is alleged to have protested the same or any one on the occurrence of such dishonor or protest, or at any time until the bringing of this suit.”
    Argued Oct. 8, 1907.
    Appeal, No. 243, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1906, No. 2,986, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles Link and John Wengert, trustees of Deutcher National Verein, v. Emma C. Bergdoll.
    February 28, 1908:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense..
    The opinion of the Superior Court states the case.

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

      J. C. Gilpin, with him George S. Graham, for appellant.—
    Under all the decided cases the averments in the affidavit of defense raise a question for the jury: McConeghy v. Kirk, 68 Pa. 200; Publishing Co. v. Hartranft, 3 Pa. Superior Ct. 59; McPherson v. Bank, 96 Pa. 135.

      G. G. Ladner, of Ladner & Ladner, for appellees.
    — None of the cases cited by the appellant are exactly similar to the one at bar. All can be distinguished and all recognize the principle laid down by Sharswood, C. J., in McConeghy v. Kirk, 68 Pa. 200, and it is submitted that the facts, the statement of claim and the affidavit of defense, of the case before the court, more clearly resemble those in McConeghy v. Kirk, than do either of the three cases cited by the appellant.
   Opinion by

Head, J.,

A contract of indorsement, when made, is neither a primary nor an absolute one. It is secondary and conditional. It is but an agreement for a future liability upon and after the happening of certain contingencies. These are nowhere described in the body of the instrument indorsed, but inhere, ex lege, in the contract created by the simple act of indorsement. They are (a) presentation for payment at the time and place designated by the parties or the law for that purpose; (b) refusal to pay by the party or parties primarily bound; (c) prompt notice of such refusal to the indorser, whose liability tjhen, but not until then, becomes fixed.

As a consequence he who seeks to recover on a contract of indorsement must aver the happening of each and every one of these essential facts or his statement will be demurrable. And, per contra, where a defendant denies, under oath, the existence of any one or more of the same facts, the affidavit is sufficient to put the plaintiff to his proofs before a jury.

In the present case, the plaintiffs, recognizing the nature of the contract on which they sue, aver the happening of the above-specified contingencies, and as to the last one, to wit: notice of dishonor by the maker, they aver the necessary notice to have been given by the notary who protested the note. Had we no law requiring an affidavit of defense they would be required to prove, as a necessary ingredient of their right to recover, the fact that such notice was actually given to the indorser before they could call on him to respond. But if, under existing laws, that fact be fairly denied in the affidavit of defense, the plaintiff must still be ready with his proofs.

The affidavit in this case declares: “That no notice of the dishonor or protest of said note was given to this deponent by the plaintiffs in this case, or the notary who is alleged to have protested the same or any one on the occurrence of such dishonor or protest, or at any time until the bringing of this suit.” To our minds this language is neither obscure as to the meaning nor evasive as to the intent of the affiant; on the contrary, it seems to fairly meet and put in issue a material fact, without s the aid of which, admitted in the pleadings or established by proof on the trial, the plaintiffs cannot recover. We must, therefore, regard the affidavit as sufficient to prevent a summary judgment and remit the record so that the cause may proceed, in due course, to trial.

Judgment reversed and a procedendo awarded; the costs of this appeal to be paid by the appellees.


text:
    Gibson, Appellant, v. Rowland.

      Evidence — Record—Quasi admission — Case stated — Special verdict— Pleadings.

    Where a case is stated to procure the judgment of a court on certain facts submitted, effect is not to be given to it beyond those facts, and certainly not to compromise a title springing from a different condition of things. It is not even evidence, in a subsequent proceeding, of the facts stated, for circumstances may be conceded as existing to raise a question of law, without intending to admit them as true, and even without believing them. The same rule applies to a special verdict where the facts are assented to by both sides, and then put into the form of a jury’s finding.
    Pleadings are conclusive in their nature; but that effect is confined to' the cause in which they are made. When used in other causes as ordinary admissions, they are of course not conclusive.
    Where the quasi admissions of a vendor are not conclusive but only adverse testimony to go to the jury, subject to any explanations, a fortiori, the court cannot declare, as a matter of law, that such admissions are conclusive against the vendee.

      Evidence — Ejectment—Judgment—Persuasive evidence.

    In an action of ejectment where the court admits the evidence of a former judgment, although obtained by default, in an action between the predecessors in title of the parties to the ejectment as persuasive evidence in favor of the defendant in the ejectment, the court is not obliged to charge that such a judgment might aloné entitle the defendant to recover, and this is especially so if there is nothing to indicate that the court may not have regarded the case as a doubtful one.
    Argued May 20, 1907.
    Appeal, No. 41, April T., 1907, by plaintiff, from judgment of C. P. Warren Co., Sept. T., 1905, No. 58, on verdict for defendant in case of Thomas Gibson v. Lewis T. Rowland.
    Before Rice, P. J., Portee., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed..
    Ejectment for land in Derrfield township. Before Lindsey, P. J.

    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    Now, gentlemen of the jury, the main dispute in this case lies right here. T^e defendant claims that at the time the deed was made from George Well Rowland to Abbie Rowland, his mother, that the deed was not delivered at that time and not delivered until some time afterward, and that it is not known exactly when it was delivered; that it wa,s not recorded until later. And at the time that George Well Rowland made the deed to Harriet Martin that the prior deed had not been recorded, and they called Mrs. Martin as a witness who testified that her brother, George Well Rowland, and her mother, Abbie Rowland, the old lady whom you saw on the. stand, came to Salamanca where she lived, and Rowland wanted to sell her the land and she agreed to take it, and they came down to Warren and had a lawyer draw up the deed, and that she brought it to the recorder’s office and it was recorded. Now Mrs. Harriet Martin testifies that she paid at that time $600 on the property. She stated that she did not remember exactly what the consideration was to be, but that she paid $600 and afterwards made another payment by timber which she says her brother got, and still another payment that she claims was made.
    The mother of Mrs. Martin is quite an old lady, eighty-three years old she said, and she says that she was with her daughter, that she came here to the recorder’s office with her where they left the deed to be recorded, and she says that she saw her daughter pay George Well Rowland, the son, a certain amount of money. She could not state the amount, it was quite a roll of bills she sáys, which she had in her hand and paid.
    Now, gentlemen of the jury, the plaintiff gives in evidence a mortgage which bears the same date as the deed, and that mortgage was for $1,000, and it recites that it is given in part payment of the purchase. And then the plaintiff gives in evidence a proceeding on that mortgage, the foreclosure on that mortgage and a defense to it, in which a special verdict was agreed upon, of the jury, and signed by the counsel for the respective parties, Clark & Noyes on one side and Brown & Ball on the other side. And the plaintiff claims that these proceedings tend to show that Mrs. Martin was not a bona fide purchaser of that land for a valuable consideration. And the counsel argues that to you, and that no money was passed or paid. Now you have the testimony of the mother that she saw a certain amount paid. You have the testimony of Mrs. Martin that she paid $600 in cash at the time of the transaction, and other payments were made afterwards, one in timber and one later. It is recited in the mortgage that the mortgage is given in part payment of the consideration. The consideration named in the deed is $1,300. The consideration named in the mortgage, or the amount named in the mortgage, is $1,000. So there would be a difference of $300 between the amount of the mortgage and the consideration named in the deed.
    [Now we say to you that if Mrs. Martin paid at the time of the execution of that deed the amount which he claims she did, she would be a bona fide purchaser for a valuable consideration. Or if she paid only $300, she would be a bona fide purchaser for a valuable consideration, if she actually paid it. So you must determine now from all the evidence whether or not she did make a payment in some amount of money there upon the execution of that deed. If she did, then the other deed, the first deed executed by George Well Rowland to his mother, would not be good as against this deed from him to his sister, Mrs. Martin; because Mrs. Martin takes it without notice, because it was not on record, and it is not shown that she had any actual notice of that former deed. So, gentlemen of the jury, you must come to your conclusion in regard to this matter.] [2]
    The plaintiff also gives in evidence the record of a judgment in an action of ejectment brought by Eugene Conklin, some years ago, against Mrs. Martin, and also the tenant of Mrs. Martin living on the property at the time. It appears from •the record that it did not come to trial. The attorney who represented the defendant withdrew his appearance and judgment was taken by default for want of an appearance. The counsel for the defendant have objected to this testimony. We have concluded to say to you that this may be taken into consideration by you as persuasive testimony. It is simply an item of evidence and may be taken into consideration by you.

      Plaintiff presented, these points: •
    2. Under the evidence contained in the record of the case of Sarah C. Rowland, .administratrix of George Well Rowland, deceased, against Harriet E. Martin, No. 71 of December Term, 1897, in Warren county common pleas, the said Harriet E. Martin was neither a purchaser for value nor without notice in the deed to her from George Rowland, Jr., and Sarah C. Rowland, his wife, of July 27, 1875, as against Abbie Rowland and those claiming under her, of the land described in the plaintiff’s writ. Answer: This point is refused. [1]
    3. The defendant in this case, Lewis T. Rowland, is charged with the record notice by the record in the proceedings at No. 71, December Term, 1878, in Warren county common pleas, of the scire facias upon the mortgage giyen by Harriet E. Martin to George Well Rowland, that said Harriet E. Martin from whom he derived title, was not a purchaser for value or without notice as against the deed from said George Well Rowland to Abbie Rowland under whose title the plaintiff claims. Answer: This is refused. The defendant is charged whatever the record shows, but we cannot say that said Harriet E. Martin, from whom he derived title, was not a purchaser for value or without notice, as against the deed from said George Well Rowland to Abbie Rowland, under whose title the plaintiff claims. [3] • ,
    4. The judgment in ejectment of January 23, 1892, in favor of Eugene Conklin against George Rowland, John G. Martin, and Harriet E. Martin in his ejectment suit against-them at No. 52, June Term, 1889, is persuasive evidence in favor of the plaintiff in this case for the interest, and to the extent that the land in controversy in that case, is embraced in the writ in this case, and may entitle the plaintiff to recover for the same in this suit, in connection with the fact that Harriet E. Martin made no claim in that suit of title under her deed from George Well Rowland. Answer: We answer this by saying it is persuasive evidence. [4] •
    Verdict and judgment for defendant. Plaintiff appealed.

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

      February 28, 1908:

      D. I. Ball, with him W. E. Bice, for appellant.
    — Where a party claims as a bona fide purchaser for value against an asserted trust or fund, it i^ incumbent on him to prove affirmatively the payment of the consideration relied on, and the mere receipt of his grantor or vendor, even though it be in a deed, will not be sufficient for that purpose against third parties: Ball v. Campbell, 134 Pa. 602; Lloyd v. Lynch, 28 Pa. 419; Redfield, etc., Co. v. Dysart, 62 Pa. 62; Baum v. Tonkin, 110 Pa; 569.
    It is necessary that the party seeking to postpone another title, shall be an innocent purchaser, as well as a purchaser for value: Hoffman v. Strohecker, 7 Watts, 86; Gibbs v. Neely, 7 Watts, 305; Gilbert v. Hoffman, 2 Watts, 66; Jackson v. Summerville, 13 Pa. 359; Martin v. Gernandt, 19 Pa. 124; Beegle v. Wentz, 55 Pa. 369; Saunders v. Gould, 124 Pa. 237; Gill'v. Henry, 95 Pa. 388; Bonesteel v. Sullivan, 104 Pa. 9; Rowland v. Martin, 4 Cent. Repr. 760.
    That the judgment of Eugene Conklin v. George Rowland, John G. Martin and Harriet E. Martin, at No. 52, June Term, 1889, was persuasive evidence in favor of the plaintiff, is beyond question. .It has been so held in many cases: Shaeffer v. Kreitzer, 6 Binn. 430; Koons v. Hartman, 7 Watts, 20; Beck v. Graybill, 28 Pa. 66; Hood v. Hood, 2 Grant, 229; Soper v. Guernsey, 71 Pa. 219.

      William S. Clark, for appellee.
   Opinion by

Head, J.,

In this action of ejectment one George W. Rowland was the common ancestor in title of the parties. It appears from the record that he executed two separate conveyances to different persons, each, on its face, embracing the premises in dispute.' The plaintiff’s title rests on a deed made by said Rowland to his mother, Abbie Rowland, dated September 20, 1874, acknowledged July 16,1875, and recorded August 19, 1878. The defendant plants his right on a conveyance from the same grantor to his sister, Harriet E. Martin, dated, acknowledged and recorded on July 27, 1875. By divers mesne conveyances, that need not here be considered, such estates as passed by these deeds had become vested in the plaintiff and defendant respectively. The plaintiff having rested his case in chief on the paper title above indicated, the defendant answered that the deed from the common ancestor, upon which he relied, was recorded more than three years earlier than the one produced by the plaintiff; and thén undertook to prove by oral evidence, of the most direct and convincing character if the witnesses were credible, that the deed to Abbie Rowland, if ever delivered at all, was not delivered until long after the deed to Harriet Martin had been executed, delivered and recorded. Although the plaintiff was unable to offer any substantial contradiction of this evidence the court, in a charge of which no complaint is made in this respect, submitted to the jury as a question of fact, to determine whether or not, at the time of the execution, delivery and record of the deed from George Rowland to Harriet Martin, the alleged earlier deed to Abbie Rowland, had ever been delivered. Their verdict must be taken as an answer in the negative and it leaves the plaintiff’s title without any foundation on which it can rest. Had he been able to establish that the deed, upon which he must rely, was in existence, a conveyance duly executed and delivered, although unrecorded, at the time of the sale and conveyance to Harriet Martin, then he would have had a basic fact from which he could proceed to prove, if able to do so, that the later vendee had actual notice of the earlier unrecorded deed; or such circumstances in regard to the possession of the premises as would have visited her with constructive notice of the outstanding title; or that by reason of fraud, etc., she was not entitled to the protection of the recording acts as against the earlier purchaser whose deed was not recorded. But with the existence of an earlier deed removed, by the verdict, from the realm of fact to that of allegation merely, all these lines of counter attack were made useless and ineffectual. If, therefore, the plaintiff’s case was fatally damaged by the introduction of evidence which the court could not reject and the jury felt bound to believe, it is difficult to see how the action of the court in the matters assigned for error, to which we will now advert, could have been substantially harmful.

By way of rebuttal the plaintiff offered the record of a mortgage purporting to secure to her vendor a portion of the purchase money recited in the deed to Harriet Martin. This mortgage was dated the same day as the deed, was drawn to be executed by her and her husband, was signed and acknowledged by her alone — and finally reached the record about a year after its date. After the death of George Rowland a sci. fa. was issued thereon by his administratrix. To this a plea was filed signed and sworn to by Mrs. Martin, talcing defense on the grounds that she was a married woman and her husband had not joined; that the mortgage was not her deed and that she owed nothing. Some time later certain facts seem to have been agreed on by counsel and were embodied in a special verdict. There is nothing in any record before us to indicate that Mrs. Martin had any actual knowledge of that proceeding. The substance of that verdict as rendered was that the conveyance from George Rowland to Harriet Martin was without any consideration and made to put his property “out of his hands and beyond the grasp” of certain persons with whom he had become involved. If the plaintiff, seeking to recover on a mortgage, was thus willing to be stated out of court, it may be surmised the mortgagor’s counsel would not long hesitate to allow her to rest her claim on such a foundation. The result was a judgment for the defendant which, on appeal, was affirmed. In the court below this record was received in evidence as an admission by Mrs. Martin tending to contradict her testimony, delivered from the stand, that she was a bona fide purchaser and had paid the full consideration recited in the deed. By their second point the learned counsel for the plaintiff asked the trial court to declare, as matter of law, that the defendant was concluded by that record, and that because of it “ Harriet E. Martin was neither a purchaser for value nor without notice .... as against Abbie Rowland and those claiming under her.” The refusal of this point is the first error assigned and the one perhaps most pressed. To have affirmed the point would, in our judgment, have been serious error. We have been referred to no authority that would warrant such a ruling. On the contrary, there are rhany which declare that, if admissible at all in a subsequent action between different parties, such a record can be used only as a quasi-admission, which is not conclusive but open to explanation by the party to be affected thereby.

In Hart’s Appeal, 8 Pa. 32, Mr. Justice Bell thus spoke of a case stated: “Where a case is stated to procure the judgment of a court on certain facts submitted, effect is not to be given to it beyond those facts, and certainly not to compromise a title springing from a different condition of things. It is not even evidence, in a subsequent proceeding, of the facts stated; for circumstances may be conceded as existing to raise a question of law, without intending to admit them as true, and even without believing them.” What substantial difference can be pointed out between a formal case stated, and a special verdict where the facts are assented to by both sides and then put into the form of a jury’s finding, it is difficult to see. In McLughan v. Bovard, 4 Watts, 308, Gibson, C. J., in discussing this subject, says: “Nor can there be a difference in principle between a verdict and a case stated; for the legal effect must be the same, whether the parties undertake to say the truth for themselves, or put themselves on a jury to say it for them.” In Darlington v. Gray, 5 Whart. 487, Rogers, J., says: “The very object of a case stated, as of a special verdict, is to end the controversy by a judgment in chief on certain ascertained points.” But even if we are not to regard this special verdict as properly classified with a case stated, but rather with the pleadings, then the true effect of their use in a subsequent action is thus stated by Professor Wigmore, vol. II, sec. 1066: “The use here discussed, of informal or quasi-admissions, has nothing to do with the use of pleadings as solemn or judicial admissions (ante, sec. 1057). The latter are conclusive in their nature; but that effect is confined to the cause in which they are made. When used in other causes as ordinary admissions, they are of course not conclusive (on the principle of sec. 1058, ante);” etc. So in 1 Greenl. Ev., sec. 537, cited in Truby v. Seybert, 12 Pa. 101, we find it stated: “So, also, it (a record) is admissible against one of the parties in favor of a stranger, as containing a solemn admission or judicial declaration by such party in regard to any particular fact. But, in these instances, it is received not as an adjudication conclusively establishing the fact, but as the declaration or admission of the party himself, that the fact is so.”

The conclusion we reach, from an examination of these authorities, is that, in permitting the special verdict, agreed on in the action of sci. fa. sur mortgage, to be laid before the jury in the present case, the learned trial court ruled as favorably for the plaintiff as the law would permit him to do. The first assignment is overruled.'

It follows, we think, from what we have already said, that the portion of the charge quoted in the second assignment and the answer of the court to the plaintiff’s third point (third assignment) correctly stated the law. If in an action by the present plaintiff against Harriet Martin herself, her quasi-admissions, found in the special verdict, would not have been conclusive but only adverse testimony to go to the jury subject to any explanations he could offer, a fortiori the court could not declare, as matter of law, that the present defendant, her vendee, was concluded. Besides, with the finding that the deed from Rowland to Harriet Martin was first in point of time, it would follow as a legal conclusion, that she, even if a volunteer, took a good title not only as against her vendor, but against all the world except the creditors of the latter who would suffer by the fraud, and neither this plaintiff nor any of his predecessors in title appear to have been in that category. Neither of these assignments can be sustained.

Nor can we find anything to criticise in the answer of the court to the plaintiff’s fourth point, the subject of the only remaining assignment. The court admitted the evidence of a former judgment, although obtained by default, in an action between the predecessors in title of the present parties, as persuasive evidence in favor of the present defendant. This is precisely the effect that the law, prior to the act of 1901, had, from the earliest times, attached to such a judgment. But the court was pressed to say that such judgment, under the facts in evidence, might alone entitle the defendant to recover. We do not think the learned court was obliged so to charge. It is true that in Koons v. Hartman, 7 Watts, 20, Kennedy, J., in deciding that such a judgment was admissible as persuasive evidence, added “and in a case of doubtful cast from all the other evidence, it ought to be considered sufficient, by the jury to turn the scale in its favor.” The point as presented was not couched in the careful language quoted, and the learned trial court may not have regarded the case as a doubtful one. But looking at the point decided in the many cases on the subject, we think it clear enough that the answer to the point followed the plain track marked out by the decisions. The fourth assignment is dismissed.

Judgment affirmed.


author: Rice, P. J.,

text:
    Kittanning Borough v. Garretts Run Gas Company, Appellant.

      Boroughs — Gas companies — License tax — Witness—Expert—Evidence.
    In an action by a borough against a gas company to recover the amount of a license tax where the chief of police of the borough is called to testify as to what his official duties were with respect to inspection and supervision of the defendant’s pipes and mains, and as to what he did in the performance of such duties, it is not error to refuse to permit the witness to be cross-examined as to his qualifications and fitness for the performance of the duties attached to his office before giving his testimony. Such a witness is not an expert, and is not called to testify as such.
    In such a case a question asked the borough treasurer as to what was the aggregate amount of license fees for several years imposed upon different companies, is properly overruled where it is not shown by other testimony, and it is not offered to be shown by the witness, what were the streets occupied by the several companies, the number of miles of pipe of each company laid therein, and the aggregate amount of fees that would be derived by the borough from this source.
    An offer of evidence should aver with reasonable distinctness and certainty the facts sought to be proved; without this the appellate court is not able to say that the rejection of the offer caused any injury.

      Corporations — Gas companies — Taxation—License tax — Police power.

    The facts that the pipes and mains of a gas company in a borough are part of its natural gas system, are necessary to carry out its corporate purposes, and are included in its capital stock on which, it pays a state tax, does not render it immune from liability for a license fee imposed by a borough ordinance. In such a case the license fee is imposed in the exercise of the police power, and is not a tax, and there is therefore no double taxation.
    The mere fact that license fees imposed upon gas companies by a borough are paid into the borough treasury, and used indiscriminately with money derived from other sources does not support the contention that the license fees were imposed to increase the general revenue of .the borough.
    Argued May 13, 1907.
    Appeal, No. 206, April T., 1907, by defendant, from judgment of C. P. Armstrong Co., March T., 1906, No. 156, on verdict for plaintiff in case of Kittanning Borough v. Garretts Run Gas Company.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit to recover license fees. Before Patton, P. J.
    At the trial the court permitted T. T. Hague, chief of police of the borough of Kittanning, to testify.as to what he had done in reference to the inspection of the defendant’s pipes and mains, without first allowing defendant to cross-examine him as to his qualifications for making such inspection. [1]
    When E. S. Hutchinson, borough treasurer, was on the stand he was asked these questions:
    “Q. Can you tell me what the aggregate amount of license fee for the years for which suit is brought, that is for 1903, 1904 and 1905? A. No, sir; I can’t. Q. Can you tell me about what it would be for the different companies if they would pay the tax under that ordinance? A. I never figured it up. Q. Can you figure it up? A. Yes, sir. Q. I wish you would do so?”
    Objected to as immaterial.
    The Court: I think that is going too far out.
    Defendant’s counsel propose to ask the witness on the stand what the aggregate amount of license fees from all the companies' having pipes and mains in Kittanning borough would be for the years for which suit is brought, for the purpose of showing that this aggregate amount will be largely in excess of the annual expense the borough may reasonably incur in regulating and inspecting the lines and mains of the different companies taxed thereunder.
    Plaintiff’s counsel object to the offer for the reason that the proof of the plaintiff was confined to the inspection of the defendant’s pipes in the borough, and what any other company might pay the borough as license fee would not be evidence in favor of the defendant for the expenses incurred by the borough for the inspection of its lines on the streets occupied by its lines.
    The Court: Objection sustained and exception noted. [2]
    2. The defendant is a public corporation with the right of eminent domain to perform its functions, and its property is represented by its capital stock, and if you find from the evidence, that during the years for which suit is brought in this case, it paid to the treasurer of this commonwealth, the taxes levied by the commonwealth on its capital stock, then the plaintiff cannot recover in this case, and your verdict must be for the defendant. Answer: Refused. [6]
    3. The cost of the inspection of the lines and mains of the defendant, as contained in the ordinance sued upon, is so out of proportion to the real cost thereof, that we say to you, as a matter of law, that the ordinance is unreasonable, and for that reason void, and your verdict will be for the defendant. Answer: Refused. [7]
    4. That although the ordinance sued upon uses the term “license fee,” the jury is instructed to go further and determine what it is, and for what purpose the money derived therefrom is used. The charge for inspection cannot lawfully be imposed, if the money arising therefrom is used for general revenue purposes, but must be used to meet the expense resulting from the duty of municipal supervision, and if you find that the money derived from the ordinance goes into the borough treasury and is mingled with the other borough funds and not used to defray the expenses of the supervision, then your verdict must be for the defendant. Answer: Refused. [8]
    Verdict and judgment for plaintiff for $510.27. Defendant appealed.

      February 28, 1908:

      Errors assigned were (1, 2) ruling on evidence; (6-8) above instructions, quoting them.

      Floy C. Jones and J. P. Hunter, of Lyon, Hunter & Burke, with them Heiner & Golden, for appellant.
    — The cross-examination of the witness Hague, should have been permitted: Davis v. Penna. R. R. Co., 215 Pa. 581; Markowitz v. P. & C. R. R. Co., 216 Pa. 535.
    The property necessary to carry out the corporate purposes of a corporation engaged in business of public interest is not liable to local taxation when such property is included in the capital stock which pays a state tax: West Chester Gas Co. v. Chester County, 30 Pa. 232; Coatesville Gas Co. v. Chester County, 97 Pa. 476; Scranton City v. Scranton Electric Light & Power Co., 8 Pa. C. C. Rep. 626; St. Mary’s Gas Co. v. Elk County, 191 Pa. 458; Schuylkill County v. Citizens’ Water Co., 148 Pa. 162; Pittsburg’s App., 123 Pa. 374.

      H. A. Heilman, with him B. A. McCullough, for appellee.
   Opinion by

Rice, P. J.,

This action was brought under a borough ordinance requiring inspéction by the police department of the mains and pipes within the borough of all artificial and natural gas companies, water companies and other companies, and imposing an annual license fee of $30.00 for each mile of pipes or mains. The defendant company had about five miles of pipe laid in the borough limits and under the ordinance the annual change amounted to $150.54. The ordinance is the same as that considered in Kittanning Borough v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355, again in the case of Kittanning Borough v. The Consolidated National Gas Co., 219 Pa. 250, and in the immediately preceding case against the Armstrong Water Company. The general principles relating to such municipal charges have been so fully discussed in these cases and the cases therein cited that we feel justified in limiting what we have to say in the present case to the specific points raised by counsel which have not been particularly noticed in the former decisions.

T. T. Hague, the chief of police of the borough, was not called to testify as an expert or to give opinion evidence, but to testify as to what his official duties were with respect to inspection and supervision of the defendant’s pipes and mains, and as to what he did in the performance of those duties. The cases cited in the appellant’s brief — Davis v. Penna. R. R. Co., 215 Pa. 581, and Markowitz v. P. & C. R. R. Co., 216 Pa. 535 — relate to the qualifications of a witness to give opinion evidence as to land values, which is always a preliminary question for the court. Obviously they do not apply to such testimony as this witness was asked to give. The court committed no error in refusing to permit defendant’s counsel to cross-examine him as to his qualification and fitness for the performance of the duties attached to his office, before giving his testimony.

We are not prepared to say that a case might not arise where the aggregate amount of license fees that would be derived annually by a municipality from all the companies subject to such an ordinance as this' that had pipes and mains in the streets/would be so large as to make that a pertinent fact to be considered by the court in determining whether the annual rate per mile of pipe was excessive, particularly if all the companies occupied the same streets, so that police inspection and supervision of the lines of pipe of all the companies could be made at the same time. But an offer of evidence should aver with reasonable distinctness and certainty the facts sought to be proved; without this the appellate court is not able to say that the rejection of the offer caused any injury: Sweetzer v. Atterbury, 100 Pa. 18. It would have been practicable for the defendant to ascertain the pertinent facts before it called the witness Hutchinson to the stand, and then to specify in its offer the streets occupied by the several companies and the number of miles of pipe of each company laid therein, and the aggregate amount of fees that would be derived by the borough from this source. If this course had been pursued, the record would have been in such shape that we could determine whether the ruling complained of in the second assignment injured the defendant. As the case is presented, all that we can say is that possibly, if the witness had been required to make the necessary computation and then testify to the result, facts might have been brought out that would have been beneficial to the defendant’s side of the case. But whether this would have been so or not is a matter of pure conjecture; it cannot be determined from the offer as made. Therefore, the second assignment is overruled.

The facts that the pipes and mains of the defendant company in the borough of Kittanning are part of its natural gas system, are necessary to carry out its corporate purposes, and are included in its capital stock on which it pays a state tax, are relied on as rendering the company immune from liability for any license fee imposed by borough ordinance. This contention is based on the erroneous assumption that the exaction of such fee subjects the company to double taxation. But the charge is not made by virtue of the taxing power of the borough, but in the exercise of the police power, “to enable the municipality, without cost to itself, to discharge the duty it owes to the public of exercising proper and reasonable surveillance and inspection with respect to the manner in which the company is exercising its privileges:” Stewart, J., in Borough of Kittanning v. The Consolidated National Gas Co., 219 Pa. 250; Braddock Borough v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544; Allentown v. Western Union Tel. Co., 148 Pa. 117. Unless the ordinance be void for unreasonableness, the company can no more claim to be immune from its provisions than it can from any other reasonable police regulation of the borough relative to the use and occupancy of its streets. The cases cited as to the nonliability of quasi-public corporations to local taxation under the facts above stated have no application to the question of the validity and application of such ordinances as this. Nor does the case of Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479, apply. This has been conclusively decided by the Supreme Court in the case above cited, wherein the very ordinance in question here was under review. We repeat: “Except as restricted by the act under which such companies derive their powers, the police power of a borough or city extends to such occupancy and use of the streets, whether upon or beneath the surface, as in its nature requires or justifies supervision at the hands of the municipality in order to safeguard the public in their rightful use of the same streets.”

It is contended further that judging the intention of the borough from its action, the ordinance was not passed to repay the expenses or provide for the liabilities incurred in the way of inspection or for proper supervision, but to increase its general revenues. In the argument in support of this contention much is made of the fact that the money derived under the ordinance from such companies as paid the license fee was paid into the borough treasury as part of the general fund of the borough, and was used indiscriminately with money derived from other sources for general borough purposes. How any inference unfavorable to the validity of the ordinance can be drawn from this fact alone it is impossible for us to see. Nor do we understand counsel to claim that the fact standing alone would be of any controlling significance. But it is claimed in connection therewith that the borough expended nothing for inspection and surveillance. It would have been more to the purpose to allege and prove, if it could be done, that there were no inspection and surveillance on the part of the borough or its officers. But the undisputed fact is that these duties were performed by the policemen and street commissioner in connection with their other duties, and the evidence is that the mode and extent of inspection and surveillance were substantially as described in the immediately preceding case against the Armstrong Water Company. While the policemen and street commissioner were not paid a specific sum for the performance of these specific duties, it is a sufficient answer to the claim that the borough expended nothing therefor, to say that the compensation paid the officers, which was considerable in amount, was for all their services, including those rendered in carrying out the purposes of this ordinance.

The question whether the license fee is so grossly in excess of what was necessary to cover the reasonably to be anticipated expense of proper inspection and police surveillance as to justify the court in declaring that the borough council was guilty of abuse of discretion, and that the ordinance is void for unreasonableness has been fully considered in the case against the Armstrong Water Company, post, p. 174, and the case against the Kittanning Consolidated National Gas Company, reported in 26 Pa. Superior Ct. 355. We will add nothing to what is there said upon the subject, except that the evidence in the present case does not justify a different conclusion from that reached in the cases cited.

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


text:
    Kittanning Borough v. Armstrong Water Company, Appellant.

      Boroughs — Water companies — License tax — Reasonableness of tax— Burden,of proof — Police power.

    A borough may under its police power impose a mileage license tax on the pipes and mains of a water company.
    Where a borough has imposed a license tax on the pipes and mains of a water company, the borough is not required to show the reasonableness of the tax for the cost of proper inspection and surveillance in the presentation of its case in chief. The burden is on the person who alleges the invalidity of the tax upon the ground of unreasonableness to aver and prove the facts that make it so.
    As it is ordinarily impossible to determine in advance the exact cost of supervision, the municipality is at liberty to make the charge large enough to pover any reasonably anticipated expense, and the payment of the fee cannot be avoided because it may subsequently appear that it was somewhat in excess of the actual expense of the supervision.
    Where the evidence shows that a water company has dug up the alleys and paved streets of a borough in repairing lines, changing connections and in searching for leaks, and that the borough policemen have been engaged in watching for leaks, for unfilled ditches, and for obstructions of the public highway, and in putting danger signals when necessary, and in reporting to the water company and the municipal authorities, a license tax of $30.00 per mile on six miles of water pipe, is not so clearly unreasonable as to require the court to declare the tax invalid.

      Argued May 13, 1907.
    Appeal, No. 205, April T., 1907, by defendant, from judgment of C. P. Armstrong Co., March T., 1906, No. 155, on verdict for plaintiff in case of Kittanning Borough v. Armstrong Water Company.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit to collect a license tax on gas and water pipes in the borough of Kittanning, at the rate of $30.00 per mile each and every mile of pipe. Before Patton, P. J.
    Plaintiff presented, inter alia, the following points:
    2. In the exercise of its police power, the borough of Kittanning, incorporated under the general borough laws of this commonwealth, may enact and enforce an ordinance requiring the mains and pipes of water companies which are laid and operated in the public highways of the borough, to be inspected by the municipal authorities so as to keep the public highways in a safe condition and convenient for public travel, and for this purpose, the borough may impose upon such water companies, a reasonable license fee therefor. Answer: Affirmed. [2]
    3. That the question of the reasonableness of the ordinance authorizing the charge of the license fee sued upon, and also the amount of- the fee charged thereunder, is a question for the court under the evidence submitted for that purpose, and the question of how many miles of pipes or mains the defendant maintained and operated in the public streets and alleys of the borough during the period sued for, and the amount due thereon at $30.00 per mile per year, are questions for the jury to determine under the evidence. Answer: Affirmed. [3]
    Verdict and judgment for plaintiff for $914.88. Defendant appealed.

      Errors assigned among others were (2, 3) above instructions, quoting them.

      C. E. Harrington and M. F. Leason, for appellant,
    cited: Kittanning Borough v. Natural Gas Co., 26 Pa. Superior Ct. 355; Schellsburg v. Western Union Telegraph Co., 26 Pa. Superior Ct. 343; Commissioners v. Gas Co., 12 Pa. 318; Soon Hing v. Crowley, 113 U. S. 703; Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490; Pittsburg’s App., 115 Pa. 4; White v. Meadville, 177 Pa. 643; Pittsburg Railways Co. v. Pittsburg, 212 Pa. 479; Consolidated Gas Co. v. Pitts-burg, 211 Pa. 489.
    February 28, 1908:

      R. A. McCullough, with him H. A. Heilman for appellee,
    cited: West Conshohocken Borough v. Conshohocken Electric Light & Power Co., 29 Pa. Superior Ct. 7; Kittanning Borough v. Kittanning Consolidated Natural Gas Company, 26 Pa. Superior Ct. 355; Kneedler v. Borough of Norristown, 100 Pa. 368; New Hope Borough v. Postal Tel. Cable Co., 202 Pa. 532; Commonwealth v. Phila., Harrisburg, etc., R. R. Co., 23 Pa. Superior Ct. 205; Landsowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490; Kittanning Electric Light, Heat & Power Co. v. Kittanning Borough, 11 Pa. Superior Ct. 31.
   Opinion by

Rice, P. J.,

The power of the borough of Kittanning to enact the ordinance in question, so far as it relates to gas companies, was distinctly affirmed by this court in Borough of Kittanning v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355, and by the Supreme Court in Borough of Kittanning v. The Consolidated Natural Gas Co., 219 Pa. 250. By the same reasoning the ordinance must be held valid as to water companies. In the case last cited Mr. Justice Stewart, after indicating the clear distinction between the case of Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479, and the earlier cases of Allentown v. Western Union Tel. Co., 148 Pa. 117, New Hope Borough v. Postal Tel. Cable Co., 202 Pa. 532, and Taylor Borough v. Postal Tel. Cable Co., 202 Pa. 583, and stating that it had been decided again and again that such exercise of power as was involved in the latter cases is within the right of the municipality, concluded his opinion with language which is peculiarly pertinent to the case now before us. He said: “It would seem to be utterly without reason to say that a municipality may exact a license tax on the poles and wires of .a telegraph company, but may not exact it on the pipes and mains of a water company. The logic that allows it in the one case would compel it in the other. Indeed, considering the frequency with which the public streets are necessarily interfered with by water companies in laying, relaying and repairing their pipes and mains, there would seem to be much greater reason for the exercise of this right in connection with such companies than with telegraph companies, since the frequency of the disturbance by the former would evidently require a stricter surveillance to secure the safety and convenience of the general public.” So also in our own case above cited we said: “The power of a borough governed by the general borough law, to provide by ordinance for police supervision and inspection by its officers and servants of pipes laid and maintained under its streets by incorporated gas companies, and, as part of and incidental to such provision, to order the payment by such companies of a reasonable annual license fee or tax, is derived from the same source, and is sustained and governed by the same general principles, as its power to enact similar ordinances relative to the police supervision and inspection of poles and wires of telegraph, telephone and electric light companies, which have been sustained in numerous cases. The fact that the latter are maintained upon the surface of the streets and the former are laid underneath the surface does not prevent the application of these principles. . . . Except as restricted by the act under which,such companies derive their powers, the police power of a borough or city extends to such occupancy and use of the streets, whether upon or beneath the surface, as in its nature requires or justifies supervision at the hands of the municipality in order to safeguard the public in their rightful use of the same streets.” We find nothing in the evidence as to the relation of this particular water company to the borough to prevent the borough, in the exercise of its police power, from subjecting the company to a reasonable license fee or tax.

But it is contended that even if the borough had the power, the fee is excessive and, therefore, the ordinance is void for unreasonableness. This question was also discussed and decided by. this court in the case above cited, and it was there held after deliberate consideration of the authorities and the general principles applicable in the determination of such a question, that in an action to recover such a charge as this the borough is not required to show the cost of proper inspection and surveillance in the presentation of its case in chief. “Presumably, borough officers will act in good faith, and exercise their best judgment and have regard only to the purpose for which it may lawfully be exacted, in fixing the amount; for that is their duty. But their power is not absolute, nor their action irreviewable by the courts. This is plain enough; the difficulty is in laying down a rule whereby the reasonableness of the amount can be determined in any case that may arise. Necessarily any rule that may be adopted must leave some latitude for the exercise of the discretion of the borough officers. Unless this has been exceeded; unless the court is able to say from the facts of which it may take judicial cognizance, or from the undisputed or admitted facts, or if there be a conflict of evidence, then from the duly ascertained facts, that the ordinance is a revenue measure under the guise of a police regulation, or that the license fee is grossly in excess of what was necessary to cover the reasonably to be anticipated expense of proper police supervision, it is not justified in interfering. Even if it be conceded that where there is a conflict of evidence, the controverted facts are to be determined by the jury, still, the burden of proof being on the defendant, the court cannot be convicted of error in giving binding instructions in favor of the borough where the defendant has not furnished evidence from which the jury could find facts which would justify the court in declaring the ordinance unreasonable. For it is to be borne in mind that this is not an action on a quantum meruit, and that where an ordinance is not unreasonable on its face, it is incumbent on one who alleges its invalidity upon the ground of unreasonableness, to aver and prove the facts that make it so.” Applying these principles to the evidence in that case we held that the court committed no error in charging the jury that the presumption in favor of the reasonableness of the license fee had not been overcome, and, therefore, that the borough was entitled to recover. It is true that while the same ordinance and the same license fee are involved in the present case, the appellant here was not a party to that case, and, therefore, was at liberty to attack the ordinance by such pertinent evidence as it was able to produce. We have, therefore, examined the evidence to ascertain whether it ought to have led the court to a different conclusion from that reached in the former case. Some of the witnesses express the opinion that no inspection was necessary, but that was a matter for the corporate authorities to determine. It is claimed further that the sum charged is larger than was necessary to compensate the borough for an inspection that could be made in a few hours. But the charge is not merely for a periodical going over the line of the pipes to ascertain if there are any breaks, but a constant surveillance by the police officers. As in the nature of things it is ordinarily impossible to determine in advance the exact cost, the municipality is at liberty to make the charge large enough to cover any reasonably anticipated expense and the payment of the fee cannot be avoided because it may subsequently appear that it was somewhat in excess of the actual expense of supervision: West Conshohocken Borough v. Conshohocken Electric Light & Power Co., 29 Pa. Superior Ct. 7. “When we consider,” to adopt the language of the learned judge below, “that the defendant corporation was digging up the alleys and paved streets in repairing lines and changing connections, and in searching for leaks; that the policemen were watching for leaks, and for unfilled ditches, and for obstructions on the public highways, putting danger signals when necessary and reporting to the water company and the municipal authorities, in order to save the life and limbs of the inhabitants, as well as the treasuries of the defendant and of the plaintiff,” we are unable to conclude that a charge which amounted to $180 a year for the police inspection and supervision of six miles of water pipe is so clearly unreasonable that the court was required or would have been justified in declaring the ordinance void.

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


author: Porter, J.,

text:
    Dorrance, Appellant v. Ryon.

      Trust and trustees — Principal and agent — Technical trusts — Statute of limitations.

    Trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which the chancellor has exclusive jurisdiction. A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person, or apply it to the purpose intended, is within the operation of the statute of limitations. A claim by a principal against an agent for moneys received by the latter for the principal’s use, is within the statute.

      Tenants in common — Rentals—Use and occupation — Act of June 24, 1895,P. L. 237.
    In an action by one tenant in common against another to recover the plaintiff’s share of the rentals for the property, collected by the defendant, the plaintiff cannot recover from the defendant for the latter’s use and occupation of the premises, unless he has averred in his statement of claim that he seeks to recover for such use and occupation.
    Argued March 5, 1907.
    Appeal, No. 2, March T., 1907, by plaintiff, from judgment of C. P. Tioga Co., Jan. T.,, 1903, No. 150, on verdict for plaintiff in case of Charles Dorrance v. John S. Ryon, Administrator, Sarah Dorrance and Carrie B. Knapp, Administrator of the Estate of George Gershum Dorrance.
    Before Rice, P. J., Porter,, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for moneys had and received. Before Cameron, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the jury returned a verdict for plaintiff for $1,600, on which judgment was entered for $61.50. Plaintiff appealed.

      Error assigned was in reducing the judgment to $61.50.

      Wm. Maxwell, with him Norman H. Ryon and D. W. Baldwin, for appellant.-
    — The trust was one to which the statute of limitations did not apply: Logan v. Richardson, 1 Pa. 372; Bear’s Est., 9 Pa. Superior Ct. 492; Lyon v. Marclay, 1 Watts, 271; Zacharias v. Zacharias, 23 Pa. 452; Bruner v. Finley, 187 Pa. 389; Jayne v. Mickey, 55 Pa. 260; Finney v. Cochran, 1 W. & S. 112; Walker v. Walker, 16 S. & R. 379; Farnam v. Brooks, 26 Mass. 212; Patterson v. Nichol, 6 Watts, 379.
    February 28, 1908:

      George W. Merrick, with him Frank D. Selph and Robert K. Young, for appellee.
    — The trust arising from the receipt of the several sums of money had no single element of activity, technicality or continuity; but was simple in its character, and therefore subject to the plea of the statute of limitation, under many decisions of this court: App v. Dreisbach, 2 Rawle, 287; York’s App., 110 Pa. 69; Hostetter v. Hollinger, 117 Pa. 606; Kane v. Bloodgood, 7 John’s Chan. 90; Fleming v. Culbert, 46 Pa. 498; Zacharias v. Zacharias, 23 Pa. 452.
   Opinion by

Porter, J.,

The plaintiff in this action of assumpsit filed a statement averring that the decedent had received various sums of money from different sources to the use of the plaintiff. The most important items related to the alleged receipt by the decedent, as the agent of the plaintiff, of certain payments made by C. H. Wells upon account of the purchase money of certain real estate situate in the state of New York, which the plaintiff had under articles of agreement sold to Wells, on January 1, 1886. The learned judge of the court below was of opinion that the obligation of the decedent to pay over to the plaintiff the money so received was within the operation of the statute of limitations and, upon the question reserved, entered judgment in favor of the defendants, non obstante veredicto, in so far as that element of the claim was involved. The plaintiff contends that George Gershum Dorrance, the decedent, received the money from Wells as trustee under the will of George Dorrance, deceased, who was ■ the father of both the parties, and that the trust was an active one under the provisions of which the trustee was to retain the principal during the period of his natural life, and that the statute of limitations did not begin to run in favor of the decedent from the time he received the money.

The provisions of the will of George Dorrance which relate to the tract of land in question are as follows: “Item VI. I give, devise and bequeath to Benjamin Dorrance and George Gershum Dorrance, my executors, .... All that certain lot of land lying in the Town of Woodhull, in the County of Steuben, and State of New York, bounded on the north by a highway; containing about one hundred and twenty-four and one-quarter acres, being lot No. 60, now occupied by C. H. Wells. ... To have and to hold the said two lots of land to the said Benjamin Dorrance and G. G. Dorrance, and the survivor of them during their natural lives, and the natural lives of the survivor of them in trust, nevertheless to pay to my son Charles Dorrance, the rent, issues and profits and income of said two lots of land yearly during his natural life, and to his heirs after him should he die before my said life estate terminates.” The seventh item of the will devised the said lands, “in which a life estate is above given to Benjamin and G. G. Dorrance in trust and after said life estate shall have terminated,” to Charles Dorrance, this plaintiff, “to have and to hold the said lots of land after said life estate therein shall have terminated with the appurtenances to the said Charles Dorrance, his heirs and assigns forever.” Benjamin Dorrance died within a few days after his father, and George G. Dorrance alone qualified and acted as executor of his father’s will.

The imposition upon the trustee of the duty to receive and pay over the income involved the necessity of management and care of the real estate, and the trust created was an active one, and, by the terms of the will, continued during the life of the trustee, if the land to which it referred ever came within the operation of this will: Bacon’s Appeal, 57 Pa. 504. The will conferred upon the trustee no power to sell the land and reinvest the proceeds. Charles Dorrance, this plaintiff, took under this will the entire beneficial interest, or vested equitable estate during the existence of the trust, and he took, also, a vested estate in fee simple in remainder, to take effect in possession upon the death of the surviving trustee. The will imposed no barrier to the alienation by Charles Dorrance of the estate which he took under its provisions. He could sell his interest in the land, receive the purchase money and dispose of it as he saw fit, absolutely free from the control of the trustee.

The evidence produced by the plaintiff rendered it doubtful whether the Wells tract had ever come within the operation of the trust created by the will of George Dorrance. George Dorrance had entered into a written contract with Wells for the sale of the tract of land and the latter was in actual possession, as purchaser, at the date of the death of the former. That contract was offered in evidence in the court below, but the appellant has not printed it in his paper-book and we know nothing of its terms. This matter seems to become unimportant, however, because of the transactions which followed the death of George Dorrance. The appellant conceded, upon the trial in the court below, that George G. Dorrance, as trustee, never had possession of this tract of land and never received from it any rents, issues or profits. Charles Dorrance, on January 1, 1886, after the death of George Dorrance, entered into a written agreement with Charles H. Wells for the sale of the land in question to the latter, and Wells covenanted to pay the purchase money to Charles Dorrance. This sale involved no violation of the provisions of the will of George Dorrance and the purchase money was the individual property of Charles Dorrance, free from the restrictions or limitations of any trust created by that will. Wells from time to time made payments on account of the purchase money and thus became vested with an equitable title to the interest in the land which under the will had passed to Charles Dorrance. George G. Dorrance may have received payment of a part of the purchase money provided for in this agreement, but there is nothing in the evidence which would warrant a finding that he received it in any other character than merely as the agent of Charles Dorrance. This money was no part of the estate of George Dorrance and was not subject to the provisions of his will. Charles Dorrance was entitled to receive the money from George G. Dorrance the, moment Wells had made the payment, and the transaction involved nothing more than the authorized receipt of money by one for the use of another. “It may be conceded that the obligation was in the nature of a trust; but the remedy for recovery of the money was at law, aud the trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which the chancellor has exclusive jurisdiction. A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person or apply it to the purpose intended, is within the operation of the statute of limitations:” Hostetter v. Hollinger, 117 Pa. 606. The first six specifications of error are dismissed.

The seventh and eighth specifications of error are without merit. The action was in assumpsit and the statement averred, as to the lots to which the evidence offered referred, that . George G. Dorrance had, during a certain period, received and appropriated to his own use, rents for said lots at a certain fixed rate. The testimony offered was for the purpose of charging the estate of the decedent for the rental value of said lots upon the ground that he alone had occupied them. The plaintiff, George G. Dorrance, the decedent, and others were tenants in common of the lot in question, and the ground upon which a tenant in common is liable to be called upon by his cotenant to account in an action of assumpsit for a proportionate share of the money which he has actually received as rent from a stranger is entirely different from that which makes him liable for mere use and occupation. The Act of June 24, 1895, P. L. 237, gave to tenants in common who have been out of possession a right to recover from those who have been in exclusive possession, their proportionate part of the rental value of real estate held in common. Prior to this statute one tenant in common could not maintain either trespass for mesne profits, assumpsit or account render, in order to compel a co-tenant to pay for mere occupation of the premises, without showing either an ouster, or an express promise to account, or to pay something. But prior to the act of 1895 a tenant in common was allowed to recover in assumpsit his share of the profits received by his cotenant from a stranger: Kline v. Jacobs, 68 Pa. 57; Gillis v. McKinney, 6 W. & S. 78; Norris v. Gould, 17 Phila. 318; Enterprise Oil & Gas Co. v. Transit Co., 172 Pa. 421. If the plaintiff intended to recover of the-defendants for mere use and occupation, he should have so averred in his statement, and as he had failed to do that the evidence was properly excluded.

The judgment is affirmed.