text:
    Ritter, Appellant, v. Wray.

      Contract—Sale—Sale of merchandise in hulk—Notice to creditors— Fraud—Act of March 28,1905, P. L. 62.

    1. Under the Act of March 28, 1905, P. L. 62, relating to the sale of merchandise in bulk, and requiring notice to creditors of a proposed sale of such character, the failure to give notice to one creditor of the proposed sale, does not make the sale fraudulent and voidable as to creditors who received proper notice.

      °2. The use of the term “creditors” in the phrase of the act “the creditors of the seller” was intended to distinguish between creditors and other persons, that is, to show that the sale is not fraudulent and voidable as to every person, but only as to creditors.

      Statutes—Literal construction—Narrow construction—Broad construction—Mischief and remedy—Reason and spirit.

    3. The literal construction of a statute has, in general, but a prima facie preference. And where it appears that the mischief and the remedy contemplated warrant and require a construction according to the narrow, instead of the broader meaning that may be attached to the words, that construction should be adopted. The effects and consequences of the proposed construction of a law, as well as its reason and spirit, will be looked into in determining the legislative intent, which is the criterion by which all acts must be construed.

      Contract—Sale—Sale of merchandise in bulk—Fraud—Attack on sale —Act of March 28,1905, P. L. 62.

    4. Where a sale in bulle of a stock of merchandise has been consummated for more than three months, no attack on the sale for lack of notice to creditors of the vendor, can be made by a levy on the merchandise sold.
    Argued Oct. 27, 1910.
    Appeal, No. 196, Oct. T., 1910, by plaintiff, from judgment of C. P. Blair Co., June T., 1910, No. 122, on verdict for defendants in case of Edwin Ritter v. Wray, Moore & Company, Ltd.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Sheriff’s interpleader to determine right to levy on stock of merchandise sold in bulk.
    Baldrige, P. J., charged in part as follows:
    Under the evidence here it appears that Mr. Ritter, the plaintiff, attempted to purchase from a man by the name of Hartman, who had a store at Lakemont, in this county, on April 15, or 16, according to his testimony. The plaintiff stated on the witness stand that he asked Mr. Hartman for a list of his creditors and that they included the four defendants in this case, which are before you. Ritter testified further that he himself went to see the firm of Kohler & Company and W. W. Blake & Company, aird notified them in person that he was about to buy Hartman out and asked for a statement of their claims and he testified that he received a statement. That so far as the other two defendants are concerned, namely, Wray, Moore & Company and Hinman & Company, that he did not go personally to see them, but that he sent a Mr. Weaver, and Weaver testified that is a fact, that he was sent and that he went to see these creditors and told them the purpose for which he came, namely, to advise them of the fact that Ritter was buying Hartman out and to get a statement of the amount due from Hartman to them.
    We say to you that if that testimony is a fact, if you believe the plaintiff, that he took these precautions, and gave the notices as he testified that he gave, that would be a compliance with this act so far as notices are concerned. The requirements of the Act of March 28, 1905, P. L. 62, relative to notice are as follows, to wit: “The purchaser shall, at least five days before the consummation of the sale, give personal notice of said proposed sale, to each of the creditors of the seller as appearing on said list, or use reasonable diligence to cause personal notice to be given to them, or shall deposit in the mail a registered letter of the notice.” The plaintiff claims that he did give such notice and that such notices were given at least five days before the sale; and as I said a moment ago, if it is a fact, if you find that that is a fact, then you would find a verdict in favor of the plaintiff.
    On the other hand, 'the witnesses for defendants go on the stand and testify that Mr. Ritter did call at the place of business of Kohler & Company, but only for the purpose of getting a statement, but plaintiff did not notify Kohler nor did he notify Blake that he purposed to purchase the store from Hartman; if plaintiff was at the defendant’s office, it was simply for the purpose of getting a statement of the amount due. You remember the testimony of Mr. Kohler and of the manager of the firm, another Mr. Kohler, on that point. The plaintiff, on the other hand, argues that defendants did not call the bookkeeper, and that Mr. Ritter may have had the alleged conversation with the bookkeeper, who was not called. The bookkeeper for Mr. Blake was called, and he says that no such conversation as was testified was had; that, while he came to the store, it was simply for the purpose of asking the amount due, which he at first demurred to giving, but subsequently did give. But the bookkeeper says that was the only thing that occurred and that he did not receive notice that Ritter was buying Hartman out, and Mr. Blake said that he did not receive such notice. Now, Mr. Wray, of the firm of Wray, Moore & Company, says that Weaver did come to see him, but that he did not tell him that Ritter was buying Hartman out; he came there and simply asked for a statement of his account. You remember Mr. Hinman testifies that while Weaver was there, he did not tell him that Ritter was buying Hartman out.
    Now, the mere fact that plaintiff or some one representing him went and asked for a statement is not sufficient; the plaintiff must also connect with that statement a notice to the effect that Ritter was buying Hartman out, and if you find that they did go there and aslc for a statement and did not notify any of these merchants or either of them that Ritter was buying Hartman out, then your verdict would be for the defendants. The defendants have put in evidence a letter from Mr. Flick, attorney for Mr. Ritter; that letter, as you will recall, and according to my recollection, was written on April 17, and in that letter Mr. Flick calls attention to the fact that on that day Ritter purchased the store from Hartman and that they desired to give notice to these creditors to whom the letters were sent, and the defendants argue by reason of that fact the way the letter was written that that was the first notice that they had received and that Mr. Ritter recognized the fact that that was the first notice by sending such a letter. On the other hand, Mr. Fletcher, representing Mr. Ritter, argues to you that that letter was sent by reason of extraordinary precautions, and that they desired to protect every person and did not desire to cheat any person; and that was the purpose of sending out that letter.
    [Now, the question, as I view this case, narrows itself down as to whether or not notice was given at the time and in the manner required by this act which I have read to you; that is the pivotal question, and that is the question for your determination. It is your duty to take into consideration the various witnesses who have testified, and conclude as to who is telling the truth or who is falsifying, or to reconcile the testimony in so far as you can to determine, from the weight of the evidence, where the truth really lies. If you come to the conclusion that Ritter notified these four defendants at the time and in the manner required by law, then your verdict would be for the plaintiff. If, on the other hand, you would find as a matter of fact that neither Ritter nor Weaver, his representative, gave the notice in the time and manner required by this act to the defendants, then your verdict must be for the defense; that is to say, that even if notice was given in the time and in the manner—say to either of these defendants, and was not given to one as required by law, still your verdict must be then for the defendants, as the law requires that proper notice must be given to all of these parties of record.] [2]
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned among others was (2) portion of charge as above, quoting it.

      W. C. Fletcher, with him E. H. Flick, for appellant.

      Thos. C, Hare, ior appellee.
    March 3, 1911:
   Opinion by

Rice, P. J.,

It is declared in the Act of March 28, 1905, P. L. 62, that the sale in bulk of the whole, or a large part, of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller’s business, shall be deemed fraudulent, and voidable as against the creditors of the seller, unless the purchaser shall, in good faith, and for the purpose of giving the notice required by the act, make inquiry of the seller, and obtain from him a list in writing of the names and places of residence or business of each and all of his creditors, and, unless the purchaser shall, at least five days before the consummation of the sale, give personal notice of the proposed sale, to each of the creditors of the seller as appearing on said list, or use reasonable diligence to cause personal notice to be given to them, or shall deposit in the mail a registered letter of notice, postage prepaid, addressed to each of the seller’s said creditors at his post office address, according to the written information furnished. Ritter, the plaintiff in this sheriff’s interpleader, claimed title to the greater part of the goods in question, under such a sale as is contemplated by the act; and Wray, Moore & Co., Limited, the defendants in the issue, were creditors of Hartman, the seller, at and for some time before the consummation of the sale, which was on April 15 or 16, 1909. It is undisputed that Ritter obtained from Hartman a list of his creditors. But the defendants in the issue denied that any notice of the proposed sale was given to them, except by a letter which was mailed on April 17. One of the defendants testified, however, that about April 1, Elmer Weaver called at their place of business and requested them to give him, for Ritter, a statement of the amount that Hartman owed them, and that they complied with his request. Weaver testified that he was acting for Ritter, and that at this interview he told the person with whom he conversed, that Ritter was about buying out the store and wanted to know the exact amount of Hartman’s indebtedness to the defendants. It is thus seen that, while the fact was in dispute, there was evidence from which the jury could find that Ritter, through Weaver, gave personal notice to the defendants of the proposed sale, in due season. There was a conflict of evidence as to whether Ritter gave personal notice of the proposed sale to certain other creditors. In short, to present the question as concisely as possible, the jury could find that Ritter gave due personal notice to Wray, Moore & Co., Limited, the defendants in the issue, but failed to give such notice to three other creditors. The court charged, in substance, that, in the event of the jury so finding, their verdict must be for the defendants. The assignment of these instructions for error fairly raises the question whether, under the act of 1905, the failure to give notice to one creditor, of the proposed sale, makes the sale fraudulent, and voidable as to creditors who received proper notice.

It is not to be denied that the words, “shall be deemed fraudulent, and voidable as against the creditors of the seller,” taken in their most comprehensive sense, would include every creditor of the seller. So, by adhering to the very letter, a plausible argument could be made, indeed has been made in another case, that the remedy is given to the creditors collectively, and not to a single creditor acting independently. As to the latter proposition, we held in Wilson v. Edwards, 32 Pa. Superior Ct. 295, that it is not incumbent on a creditor, as to whom such a sale is fraudulent and voidable, to obtain the co-operation of other creditors. “He has the right to attack it in the method which was always an available and appropriate method for a creditor to pursue in order to invalidate, that is, to render of no legal force and effect, so far as the collection of his claim is concerned, a sale of chattels by a debtor, which as to such creditor is voidable upon the ground of fraud.” In the construction of the statutes of Elizabeth, relating to fraudulent conveyances, it has been held that they are voidable as to creditors, only so far as to enable such persons as are prejudiced thereby, to enforce their demands against the grantor: Haak’s App., 100 Pa. 59. For example, a conveyance intended to defraud creditors is not void, but only voidable by the creditors whom it tended to defraud; and this does not include prior hen creditors: Byrod's App., 31 Pa. 241. A conveyance in fraud of creditors, made with the full knowledge of existing creditors, is valid so far as the creditors who assented to or affirmed the conveyance are concerned: Zuver v. Clark, 104 Pa. 222; Mitchell v. Mitchell, 212 Pa. 62. If the purpose of the act of 1905,- and the mischief it was intended to prevent, be considered, it could scarcely be contended that the legislature intended that a sale of merchandise in bulk, if otherwise unimpeachable, may be impeached by one who, with knowledge of it, afterwards becomes a creditor of the seller, or that if an existing creditor, who has been duly notified of the proposed sale, encourages or assents to it, he may afterwards have it set aside upon proof that some of the other creditors were not duly notified. We cite these illustrations to show some of the absurd results that would flow from giving to the words, “the creditors of the seller,” the most comprehensive meaning possible, and thus holding that, in determining whether any person has standing to attack the sale, every other fact must be ignored excepting that he is a creditor. It is possible, and not at all improbable, that a purchaser, in good faith, of a large stock of merchandise in bulk, might, through the inadvertence of his agent employed to give notice to all the creditors, fail to. give notice to one creditor holding a trifling claim, and that no one but that person was prejudiced by the omission. The statute enables him to enforce his demand against the goods, for the mandate is that notice shall be given to each of the creditors, and the smallness- of a creditor's claim cannot affect his right. But to hold that it enables the other creditors to take advantage of the omission would seem to press the words, “the creditors of the seller,” beyond their necessary meaning, and to accomplish a harsh result that the legislature did not intend. The literal construction of a statute has, in general, but a prima facie preference. And where it appears that the mischief and the remedy contemplated warrant and require a construction according to the narrower, instead of the broader meaning that may be attached to the words, that construction should be adopted. The effects and consequences of the proposed construction of a law, as well as its reason and spirit, will be looked into in determining the legislative intent, which is the criterion by which all acts must be construed. The cases are numerous in which the words of the statute, though general, have been given a limited construction, if necessary, in order to carry out the intent of the law. As was said in Big Black Creek Improvement Co. v. Commonwealth, 94 Pa. 450, here, if anywhere, the rule should apply, that “statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and, where discovered, it ought to be followed with judgment and discretion in the construction, though that construction may seem contrary to the letter of the statute.” See, also, Turbett Twp., Overseers of the Poor, v. Port Royal Boro., Overseers of the Poor, 33 Pa. Superior Ct. 520, and cases there cited. “Language is rarely so free from ambiguity as to be incapable of being used in more than one sense; and to adhere rigidly to its literal and primary meaning in all cases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to lay hands on a priest, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who bled a person in the street to save his life would have been liable to punishment.” Endlich on Interpretation of Statutes, sec. 25. The use of the term “creditors” in the phrase of the statute above quoted, was to distinguish between creditors and other persons, that is, to show that the sale is not fraudulent and voidable as to every person, but only as to creditors. It is, therefore, not denying effect to the words, to inquire into the question whether, under the circumstances, the particular creditor attacking the sale has standing to do so. We conclude, without further elaboration, that the proper construction of thé statute does not require it to be held that the failure to give notice to one creditor will, of itself, make the sale fraudulent and voidable as to the creditors who were properly notified.

The sale was consummated on April 16. The defendants did not attempt to impeach the sale, by levying upon the goods, until more than three months thereafter. This would seem to be an insuperable obstacle to their right to avail themselves of the provisions of the act of 1905; for the statute declares that no proceedings at law or equity, shall be brought against the purchaser to invalidate any such voidable sale, after the expiration of ninety days from the consummation thereof. It is conceded, however, that this objection was not raised in the court below in any way. Therefore, we do not reverse the judgment on that ground, but upon the grounds previously stated.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Beavek, J.,

license: Public Domain

text:
    Price’s Estate.

      Appeals—Paper-book—Failure to print auditor’s report.

    Where on an appeal to the orphans’ court the appellant fails to print the auditor’s, report, and the appellate court as a consequence is unable to pass upon the questions raised by the assignments of error, the appeal will be quashed.
    Argued Oct. 27, 1910.
    Appeal, No. 201, Oct. T., 1910, by D. W. Price, from decree of O. C. Huntingdon Co., directing the payment of money in Estate of George W. Price.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Petition for an order to pay over money.

      Error assigned was decree directing payment.

      H. W. Petrikin, for appellant.

      H. H. Waite, for appellee.
    March 3, 1911:
   Opinion by

Beavek, J.,

The appellant and appellee are brothers and coexecutors of the will of their father. They filed in the orphans’ court of Huntingdon county separate accounts, or more properly an account in which each debits and credits himself with the amounts received and paid respectively. In this account they each take credit for compensation of $20.00 which, of course, indicates that the amount of compensation for each is a credit, as against the amount with which he charges himself as executor. This account was confirmed absolutely and an auditor appointed to distribute and make report.

It appears from the appellant’s history of the case, that the auditor did make a report which was confirmed, but it is not printed in the appellant’s paper-book and the questions involved, being based upon facts which presumably appear or at least should appear therein, are, therefore, not before us in a way which enables us to dispose of them. It appears from the testimony on the rule to show cause why the appellant should not pay to the appellee the amount alleged to be due him as commission as one of the executors, and also an amount due him as a distributive share of his father’s estate, that each of the executors, in addition to that with which he charges himself in the joint account, or the account in which he sets forth his debits and credits separately, was charged in the will of his father with $100. This does not appear in the account, as filed. It is presumed, therefore, that it was taken into account in the report of the auditor, who made distribution among the heirs, but as we have not that report, we are unable to determine anything in regard to the matter. It would seem, therefore, as if the appellee not only had received the commission which he charges against-the amount which he received from his co-executor, but that he had also in his hands, with which he was charged by the will of his father, enough money to pay both his commission and his distributive share, if that share is correctly stated in the history of the case, of which we have no evidence.

We are, therefore, unable to determine the facts upon which the appellant relies as the foundation of his appeal, and, inasmuch as this is his default, the report of the auditor not being printed in his paper-book, we are unable to determine upon their merits the questions involved.

Appeal quashed.


author: Henry, P. J., Head, J.,

text:
    Stoever’s Estate
    (No. 1).

      Wills—Legacy—Specific and demonstrative legacies.

    1. Wherever an intent is exhibited to make distribution of the value of lands either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific.
    2. Where a testator devises land to a nephew at a sum stated per acre, and directs that the purchase money shall be paid by the devisee of the land to various legatees in amounts stated, the legacies are specific, and if the nephew refuses to take the land and it is sold at an amount less than the aggregate of the legacies, the legatees will be confined to the proceeds, and will not be entitled to have their legacies made up to the amount stated in the will from the other assets of the estate.
    Argued Oct. 27, 1910.
    Appeal, No. 230, Oct. T., 1910, by Nathaniel Lieb, from decree of O. C. Lebanon Co., March T., 1908, No. 28, sustaining exceptions to auditor’s report in Estate of William H. Stoever, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of Grant Weidman, Esq., auditor.
   Henry, P. J.,

filed the following opinion:

William H. Stoever by his will provided, inter alia, as follows: “Item: I give, devise and bequeath unto my nephew Jacob Melancthon Stoever, and to his heirs and assigns, my farm near Myerstown, Lebanon County and State of Pennsylvania, upon which I at one time resided, containing fifty acres, more or less, at and for the sum of one hundred and seventy-five dollars (1175) per acre, which said purchase money I order and direct him to pay. to the following named legatees in manner following:— Item: I give and bequeath one thousand dollars thereof to my friend Nathaniel Lieb, the tenant of my Berks County farm, which is situate near the City of Reading and to him, his heirs and assigns absolutely.” Then follow four other bequests, similar in form including one to his wife Lucy in payment and satisfaction of a marriage contract, all of said pecuniary legacies aggregating the sum of $7,600. The testator further provided: “Item: I do hereby charge the purchase money at the rate of one hundred and seventy-five dollars per acre as aforesaid as a lien upon the farm devised as aforesaid to my nephew Jacob Melancthon Stoever; should, however, my nephew, refuse to take said farm at said price of one hundred and seventy-five dollars per acre, then and in such case, I order and direct my hereinafter named executors to sell the same, either at public or private sale, which to them may seem most advantageous,” etc. “Item: It is further my will that my executors hereinafter named, as soon as to them may seem proper after my decease, sell the balance of my estate, real, personal and mixed, including my farm near Reading, either at public or private sale, as to them shall seem most advantageous to my estate, and collect all moneys due my estate, including whatever purchase money may be due by the said Jacob Melancthon Stoever for the farm devised to him, and after the same shall have been converted into money, I dispose of the same in manner following: Item:—I give and bequeath five hundred dollars thereof to Y. Luther Stoever, his heirs and'assigns.” He then bequeaths the “balance thereof.”

Jacob Melancthon Stoever refused to take the farm at the price charged therefor by the testator and it was sold by the executors under the power given them by said will for the sum of $4,934.08.

The auditor appointed to make distribution of the balance in the hands of the executors under their accounting, concluded that the said bequest of purchase money of said farm amounting to $7,600 were general legacies and not subject to abatement for any deficiency in the selling price of said farm. Exceptions were filed by the residuary legatees to the auditor’s distribution excepting to the allowance of said legacies in full as well as excepting to the payment in full of the legacy to V. Luther Stoever.

The position of the exceptants, briefly, is that said legacies of purchase money charged on the farm devised to Jacob Melancthon Stoever are specific and must be confined to the proceeds of the sale of this farm; on the other hand, these legatees contend that their legacies are demonstrative, not liable to any abatement for the deficiency between the selling price of the farm and the amount of the legacies charged against it in the devise to Jacob Melancthon Stoever and payable generally out of the estate of the testator.

“A demonstrative legacy is a gift of money or other fundible goods charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund or to evince an intent to relieve the general estate from liability in case the fund fails:” 18 Am. & Eng. Ency. of Law (2d ed.), 721.

Among the earlier cases in Pennsylvania bearing on demonstrative legacies are Cryder’s App., 11 Pa. 72, in which testator directed that his real estate should be sold and then gave certain legacies, directing that they “be paid out of the sale of” certain real estate, and Balliet’s App., 14 Pa. 451, where testator devised certain lands subject to the payment of a certain sum of money by said will bequeathed to his sister and the issue of his deceased brothers and sisters. In both of these cases the legacies were held to be specific.

In Walls v. Stewart, 16 Pa. 275, the doctrine of demonstrative legacies was carefully considered, the English and American authorities reviewed and the law with reference to this class of legacies stated to be as follows: “wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific.” In this case the legacy was directly charged upon land devised, to be paid by the devisee and was held to be specific.

In Welch’s App., 28 Pa. 363, real estate was devised to a son and the sum of $300 was bequeathed to a daughter to be paid by the son out of the profits of the real estate bequeathed to him, and it was held that the legacy was demonstrative, that the real estate charged was a mere auxiliary fund provided to secure its payment. The general rule was here stated to be “that where the legacy is so connected with the fund out of which it is payable, that the legacy and the fund are the same, it is specific.”

In Smith’s App., 103 Pa. 559, testator bequeathed to his son “the sum of $2,000, out of the sum of near $4,000 now on deposit in the Farmers Bank, providing the said amount and interest are collected from the assets or stockholders of said Bank,” and to another son the sum of $1,500 with the same proviso, “the remaining part of the money collected from said Bank to be divided equally between” said sons. Testator collected the claim in his lifetime. Held that the said legacies to the sons were specific.

In Hammer’s Est., 158 Pa. 632, testator directed conversion of his real estate and out of the proceeds directed $3,000 to be paid to a son “to equalize him with my other sons who were advanced $3,000 each in the purchase of real estate.” This legacy was held to be demonstrative, but the case seems to have turned on the expressed purpose of the testator to equalize the sons for amounts given to them, either before or after his death, and the court strongly intimated that but for the presence of these words in the will, the legacy in question would have been construed to be specific.

In Snyder’s Est., 217 Pa. 71, testatrix bequeathed $600 of bank stock "of a named bank and $2,000 of the bank stock of bank referred to above,” held, that these bequests were not specific, and that testatrix did not give to the legatees specific shares of bank stock belonging to her but gave in general terms a certain amount of bank stock in the bank, without identifying any particular shares or distinguishing those given from all others of the same kind of stock.

In Pruner’s Est., 222 Pa. 179, testator bequeathed certain insurance policies held by him as security for a debt. The insurance matured and testator received the proceeds of the policies which he invested in bonds; held that the legacy was specific and was adeemed by the maturity and payment of the policies before the death of the testator.

Black’s Est., 223 Pa. 382, in effect held that the legacy was specific, where testator bequeathed the proceeds of two bonds to legatees and during his lifetime collected the amount of the bonds, investing the proceeds in a mortgage, on the ground that this was a bequest of the proceeds of the bonds and these proceeds were traced out and identified intact.

Bearing in mind the somewhat shadowy distinctions of the cases, that courts incline against construing legacies as specific and that the intention of the testator should be clear to make a legacy specific, we must, however, not lose sight of the fact that the primary purpose of all rules of construction and interpretation is to arrive at the intention of the testator.

In the case at hand the testator in clear' and express language devised the farm to his nephew at and for a certain sum of money and then gave part of these proceeds to the legatees in question. In each bequest, he uses the words “I give and bequeath dollars thereof,” referring to this purchase money. We are not dealing with the case of giving a legacy and then directing a fund out of which it shall be paid, but it is a direct and specific giving of the purchase money. The legacy and the fund are one and the same thing. Under the cases cited we think these legacies are clearly specific and that the testator intended that they should be confined for payment to the farm devised to his nephew. This conclusion is strengthened by the later clause of the will in which testator directs the conversion of the residue of his estate, “including whatever balance of purchase money may be due by the said Jacob Melancthon Stoever for the farm devised to him.” Testator estimated the farm as containing fifty acres and at the figure at which it was devised to his nephew,' viz.: $175 per acre, the purchase price would have been $8,750. The bequests of this purchase money amounted to $7,600, so that testator’s intention was that about one-eighth of this purchase money, or in other words about one-eighth of this farm, should go to the residuary legatees.

The only indication of intention to make these legacies general is the provision giving $2,000 of this purchase money to testator’s wife in payment and full satisfaction of a marriage contract, calling for the payment of this sum to her after his death. But this loses its force when we consider that this amount was payable in full in any event as a legal claim against his estate and in fact was paid by the executors and credit taken therefor in the account.

The fifth exception was evidently taken under a misapprehension. After providing for the conversion of the residue of his estate, including the collection of the balance of purchase money, over and above said legacies, for the farm devised to Jacob Melancthon Stoever, the testator gives $500 of this converted residue to V. Luther Stoever, his heirs and assigns. This is a general legacy, in no wise bound by the restrictions of the legacies payable out of the purchase money of the said farm, and must be paid in full, less the deduction for collateral inheritance tax, which was properly made by the auditor.

Errors assigned were in dismissing exceptions to auditor’s report.

Eugene D. Siegrist and II. Robert Mays, for appellants.

—Legacies are presumably demonstrative and not specific, and in order to proclaim a legacy specific it must appear not only that it is charged upon and payable out of a fund pointed out by the testator, but also that it is clearly the intention of the testator to exonerate his general estate from the payment of it, or of any part of it because of a deficit in the primary fund: Welch’s App., 28 Pa. 363; Smith’s App., 103 Pa. 559; Hammer’s Est., 158 Pa. 632; Eavenson’s App., 84 Pa. 172; Hoppel’s Est., 5 Phila. 216.

Dawson W. Light, for appellees.

March 3, 1911:

And now, to wit, August 24, 1910, the first, second, third, fourth and sixth exceptions, so far as they pertain to the legacies charged against the farm devised to Jacob Melancthon Stoever, and payable out of the purchase money of said farm, are sustained; the fifth exception is overruled. The report is referred back to the auditor to recast the distribution in accordance with this opinion.

Opinion by

Head, J.,

If we were to confine our attention to the definitions given by approved text writers, or to those decisions of the courts, English and American, which may be said to furnish typical illustrations of each class, the distinction between a specific legacy and what is now called a demonstrative one is easy to perceive. This distinction, resting as it does on sound reasoning as well as abundant authority, has never been departed from by our courts, and is a solidly established part of our system of jurisprudence. Of course when a specific legacy related only to a distinctive chattel, for instance, a certain jewel, piece of plate or other like object, no question could arise. But specific legacies may be of money as well as of chattels, and it is such legacies that have given rise to most of the litigation on this subject. The difficulty arises in those cases where the courts have been called upon to determine, upon the construction of language more or less obscure used by a testator, what his real intention was as to the nature or quality of the legacy given. It has thus sometimes happened that the reasons for a conclusion one way or the other were so nearly balanced that considerable importance had to be given to the peculiar circumstances surrounding that testator or to particular expressions contained in his will that would never perhaps be repeated in another. Whatever may be said as to the value of such cases as precedents, it is clear enough, from an examination of the whole line of authority on the subject, that we still adhere to the distinction between the two classes of legacies; and that where the language of a testator, construed in the light of this well-recognized distinction, fairly exhibits his intention that certain legacies should be classed as specific rather than general or demonstrative, the courts will readily declare and effectuate such intent.

In Walls v. Stewart, 16 Pa. 275, the whole subject was most carefully examined by Mr. Justice Bell in a learned opinion reviewing the older cases, both English and American. The true line of demarcation which segregates specific legacies from all others is there clearly pointed out in the following language: “Indeed, I think an examination of the authorities, English and American, will show that wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific, and, consequently, liable to be adeemed by an alienation of the land in the lifetime of the testator. I may add, this is also true where the only gift of a legacy is found in the direction to pay it out of the land devised: 2 Jarman on Wills, 593, and the cases there cited: or, as it is elsewhere expressed, where a testator charged his real estate with a sum of money, and then bequeaths the sum so charged: Dickin v. Edwards, 4 Hare 273; though it is commonly otherwise where there is a distinct bequest, afterwards generally charged on the lands of the donor.” The many later cases referred to in the careful opinion of the learned court below and the able briefs submitted by counsel exhibit no intention on the part of the courts to depart from the line thus indicated.

. Turning then to an examination of the will of the testator in the case before us, we discover his primary intent, with relation to the particular legacies in question, in the following language descriptive of what he intended to bequeath and the persons among whom it was to be divided: “I give, devise and bequeath unto my nephew, Jacob Melancthon Stoever, and to his heirs and assigns, my farm, .... containing 50 acres more or less at and for the sum of one hundred and seventy-five ($175.00) dollars per acre, which said purchase money I order and direct him to pay to the following named legatees in manner following: Item—I give and bequeath one thousand dollars thereof to my friend Nathaniel Lieb (the present appellant) and to him, his heirs and assigns, absolutely, etc.”

Confining our attention for the moment to this significant language, we at once discover that what the testator intended to do was to give to the persons he was about to name the purchase money which was to be paid by the devisee of his real estate. We have here no case in which the testator evinces his intent to give certain sums of money to certain legatees and then merely indicates his will or preference that such legacies should be paid out of a certain portion of his estate; but on the contrary, before any legatee is mentioned, we have the clearly expressed intent of the testator that what he is about to give away is the purchase money of certain land devised at a valuation; and this money is to be paid or distributed directly by the devisee to the parties named, the present appellant being the first of them. Or, to recur to the language of Mr. Justice Bell already quoted, we have thus far, expressed with all reasonable clearness, the intent of the testator “to make distribution of the value of lands;” or again, we have with like clearness a case “where the only gift of a legacy is found in the direction to pay it out of the land devised.” The language used by the testator in the later bequests of other portions of this fund to the other legatees named indicates that he kept clearly in mind this primary intent and that he was dealing with portions of the purchase money for which he had provided in the devise of his real estate quoted. If then that devise had become effective and the devisee named had accepted the land devised at the valuation, it seems to us there can be but little doubt that this appellant would have been compelled to look to the purchase money alone for the amount of his legacy and that the remaining portion of the testator’s estate would have been relieved from any liability to pay the same.

Unfortunately it turned out that there existed in the mind of the testator a very erroneous idea as to the true value of the land he had thus devised. His devisee refused to accept the land at the valuation, as he of course had the right to do. The testator had evidently contemplated this possibility because he expressly provided that in such case his executors were to sell the land. But he does not appear to have contemplated, even in that event, that there would likely be any diminution of the fund, a share in which he had previously given to this appellant, because he makes no other provision for the payment to him and the others in his class of any other sum or in any other manner except in the general provision we have first quoted.

When the land was actually sold, it produced a fund not much more than half the purchase price, which the testator undertook to divide among this appellant and others. It is argued that if these legacies must be regarded as specific, the bequest to Stoever Zimmerman, a nephew, whose executors have also appealed, would be inadequate to accomplish his expressed purpose. This may be so, but it does not justify the court in rewriting the will of a testator who undertook to give away a sum of money which he did not in fact possess. What the testator would have provided in his will, had he then realized that his land would produce only the sum for which it was afterwards sold, no human tribunal can determine. To conjecture that the testator, in such event, would have given to this class of legatees just the sums he named, to the exclusion of others mentioned in his will; or that he would have omitted some so that the others could receive the amounts indicated; or that he would have cut down each legacy so as to maintain the same relation to the actual purchase money of the land, it now sustains to the value he had in mind, would be to pass the limit which must always define the action of courts administering established principles of law. But we plant our judgment on a firm foundation when we recognize ■ that the testator has clearly declared, almost in the language of the eminent jurist we have quoted, that the legacies with which we are dealing are specific legacies. That being established there remains no contention as to the manner in which the fund should be distributed.

The learned judge below in a careful opinion has, we think, himself fully vindicated the conclusion he has reached, and it is doubtful whether we have added much of value in support of it.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Head, J.,

text:
    Stoever’s Estate
    (No. 2).
    March 3, 1911:
   Opinion by

Head, J.,

This is a similar appeal to that of Nathaniel Lieb in his own right which we have just disposed of and in which we have filed an opinion ante p. 451. For the reasons there given we affirm the decree of the learned judge below and dismiss this appeal at the costs of the appellant.


text:
    Stoever’s Estate
    (No. 3).
    March 3, 1911:
   Opinion by

Head, J.,

For the reasons given in the opinion filed in the appeal of Nathaniel Lieb ante, p. 451, argued with this case, the decree of the lower court is affirmed and the appeal dismissed at the costs of the appellant.


author: Orlady, J.,

text:
    Keller, Appellant, v. Conestoga Traction Company.

      Negligence—Street railways—Killing of cow.

    A person who drives cows at night along a public highway on which there is a street car line, will not be entitled to recover damages from the railway company for the killing of one of the cows by a street car, where it appears that none of the cows were fastened, that the night was very dark, that the drivers of the cows gave no signal to the motorman, and that the speed of the car was described by the witnesses only as “fast” or “very fast.”
    Argued Nov. 14, 1910.
    Appeal, No. 6, Oct. T., 1910, by plaintiff, from order of C. P. Lancaster Co., Oct. T., 1907, No. 48, refusing to take off nonsuit in case of Jacob Keller v. The Conestoga Traction Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for the killing of a cow. Before Landis, P. J.
    The fapts are stated in the opinion of the Superior Court.

      Error assigned was order refusing to take off nonsuit.

      B. F. Davis, for appellant.
    IT. ¡7. Hensel, for appellee.
    March 3, 1911:
   Opinion by

Orlady, J.,

The plaintiff’s cow was killed by a car on the tracks of the defendant company. The evidence offered was so indefinite and uncertain that the court directed a compulsory nonsuit which it subsequently refused to lift.

Taking the testimony in its most favorable light, it is not possible to more than guess in regard to the cause of the accident.

The exact place is in doubt. The plaintiff’s principal witness stated that when the cow was struck, they had passed the built up portion of the town and had driven out into the country about one mile: two others testified that the animal was lying, after it had been hit, in the center of the town. The time given was about half past four in the morning, after this cow with three others had been driven for fifteen miles since midnight. It was so dark that one of the drivers carried a lantern to guide his steps; there was no evidence of any effort to keep the cow from the track, or of any signal to the motorman to slacken the speed of the car, other than the wave of the hand by a driver who preceded the cows, and so far as this record shows, this might as readily have been intended for a friendly salutation as a. notice of caution.

No one saw the accident. The car carried a proper light, and was rounding a curve. The speed of the car is mentioned as going “fast,” and “very fast,” but these terms are meaningless unless there is some standard with which to compare the speed. The time, place and comparative rate of speed are equally important in such cases. One man may think five miles an hour excessive, and another insist with equal honesty that ten is a reasonable one. Cars may be run very fast under certain circumstances, and under other conditions they must be run at a very slow rate.

At all times the motorman must have his car under control, so as not ruthlessly or recklessly to run down an animal or person on the track. There is no evidence here to show that the motorman did, or could see the cows as they walked along the road, without fastenings of any kind. It was the duty of the drivers to keep the cows from the track, as the car had the superior right to its use, and it was incumbent on the plaintiff to show that performance of this duty had been at least attempted. There is nothing in the case to show that the motorman was not performing his whole duty: Hazel v. People’s Pass. Ry. Co., 132 Pa. 96; Yingst v. Lebanon & Anville St. Ry. Co., 167 Pa. 438; Wright v. Ry. Co., 213 Pa. 318; Hanlon v. Traction Co., 28 Pa. Superior Ct. 223; Dunkle v. Ry. Co., 209 Pa. 125.

The judgment is affirmed.


text:
    King, Appellant, v. Lancaster County Mutual Insurance Company.

      Insurance—Fire insurance—Insurable interest—Husband and wife.

    1. Where a husband conveys to another a dwelling house insured in a mutual fire insurance company, and on the same day the grantee conveys the property to his grantor’s wife, and no notice is given to the insurance company of the change of ownership, and the house is thereafter totally destroyed by fire, there can be no recovery upon the policy. In such a case the fact that on the reconveyance to the wife the husband acquired an interest as tenant by the curtesy is immaterial.
    2. A sale of property insured does not carry with it the policy of insurance. The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the person insuring against such loss or damage as he may sustain. When he parts with the title to, and the possession of the property,' and has no further interest in it, he can sustain no loss or damage by its destruction, but the loss, if any, is that of his grantee. In the absence of an assignment, the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss.
    Argued Nov. 14, 1910.
    Appeal, No. 7, Oct. T., 1910, by plaintiff, from judgment of C. P. Lancaster Co., Jan. Term, 1909, No. 21, on verdict for defendant in case of W. D. King, to use of R. V. Alexander, his Trustee in Bankruptcy, v. The Lancaster County Mutual Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Landis, P. J.,
    The opinion of the Superior Court states the facts of the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      E. M. Gilbert and T. B. Holahan, with them B. V. Alexander and A. F. Shenck, for appellant.
    There was no reservation in the policy declaring that if the insured conveyed the property to a third person, or persons, the insurance should become null and void without the consent of the insurance company. In the absence of such a reservation the policy did not become null and void: Rouse’s Est. v. Directors of the Poor of McKean County, 169 Pa. 116; Clarke’s App., 79 Pa. 376.

      Chas. W. Eaby, for appellee.
    The sale to Obreiter did not carry with the property the policy of insurance: Olyphant Lumber Co. v. People’s Mutual Live Stock Ins. Co., 4 Pa. Superior Ct. 100; Snodgrass v. Southern Mutual Ins. Co., 14 Lane. L. R. 377.
    The sale from Obreiter to Sadie A. King, wife of William D. King, did not reinstate the interest of William D. King, as owner, or restore the policy without the consent of the insurer: Bemis v. Ins. Co., 200 Pa. 340; Chulek v. Ins. Co., 30 Pa. Superior Ct. 435.
    A husband has an insurable interest in the real estate of his wife. His tenancy by the curtesy is created by her acquisition of the property: Harris v. York Ins. Co., 50 Pa. 341.
    The question, in a case of this kind, is not whether the assured had an insurable interest; but, whether he had the interest described in the policy: Duda v. Home Ins. Co.; 20 Pa. Superior Ct. 244. King had an insurable interest, but he did not have that interest insured.
    March 3, 1911:
   Opinion by

Orlady, J.,

On May 25, 1891, W. D. King became the fee simple owner of a tract of land with improvements thereon described in his deed from A. L. Neff and wife. On Au-. gust 14, of that year, the defendant company issued its policy of insurance to W. D. King, on the frame dwelling house erected on the land conveyed by Neff to him. On October 4, 1905, during the life of this policy, W. D. King and wife conveyed this property to C. H. Obreiter, and on the same day Obreiter conveyed it to Sadie A. King, the wife of W. D. King. On neither conveyance was there any reference made to the insurance policy, nor was it transferred or assigned by W. D. King to anyone—nor was any notice given to the company of the change of ownership.

On October 30, 1907, the frame building was totally destroyed by fire, when W. D. King gave notice to the company of the fire and that he claimed the proceeds of the policy. On October 7, 1907, an assessment was made by the company, notice thereof being sent to W. D. King, the supposed owner, who paid the assessment on December 7, 1907, to an agent of the company, but the amount was immediately returned by the company to King who refused to accept it.

The record shows that the company had no notice or knowledge of the transfer of the title from King to Obreiter or from Obreiter to Sadie A. King until after the fire. Under the terms of the charter and by-laws of this mutual company the assured becomes a member of the company, and it is by reason of his membership that an assured is entitled to recover for a loss by fire of the property described in the policy. No one but a member is entitled to so recover, and Mrs. Sadie A. King was not a member under this or any other policy.

If W. D. King had no interest in the property at the time of the fire, it is against public policy to permit him to recover the insurance: Gilbert v. Moose, 104 Pa. 74. The whole subject is disposed of by Judge Rice, in Olyphant Lumber Company v. People’s Mutual Live Stock Insurance Company, 4 Pa. Superior Ct. 100, as follows: “A sale of property insured does not carry with it the policy of insurance. The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the person insuring against such loss or damage as he may sustain. When he parts with the title to, and the possession of the property, and has no further interest in it, he can sustain no loss or damage by its destruction, but the loss, if any, is that of his grantee. In the absence of an assignment, the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss.” See also Kompa v. Franklin Fire Insurance Co., 28 Pa. Superior Ct. 425; Bemis v. Harborcreek Mutual Fire Ins. Co., 200 Pa. 340.

The plaintiff did not change or affect his right to recover on this policy by the payment of an assessment which had been levied before the fire when the company believed, and had a right to believe, so far as his actions informed it, that he was the owner of the property. The conveyance to Obreiter rendered the policy void: Chulek v. United States Fire Insurance Co., 30 Pa. Superior Ct. 435. Nor is his case helped by the fact that the reconveyance to his wife gave him an interest as tenant by the curtesy. This contention might have merit if he had insured the property after the wife had acquired title, but it is not suggested that the insurance was affected to protect that interest. The question is not whether the assured had an insurable interest, but whether he had the interest described in the policy: Duda v. Home Insurance Co., 20 Pa. Superior Ct. 244; Beddall v. Citizens’ Insurance Co., 28 Pa. Superior Ct. 600.

The court properly directed the jury to return a verdict for the defendant.

The judgment is affirmed.


author: Morrison, J.,

text:
    Hunter v. Pennsylvania Railroad Company, Appellant
    (No. 1).

      Railroads—Fire from sparks—Negligence—Measure of damages.

    1. Where a wood lot is burned over, and timber, young trees and sprouts growing thereon are destroyed by sparks from a locomotive negligently emitted, the measure of the liability of the railroad company is the difference between the value of the land immediately before the fire and its value immediately thereafter.
    2. In such a case where there is positive testimony that there were grass, leaves and chunks accumulated along the right of way of the railway, and had been there for a long time, and that it was a very dry season, the question of the railroad company’s negligence is for the jury.
    3. If a fire is negligently started on a railroad company’s right of way and burns across other lands than the plaintiff’s and finally reaches the plaintiff’s lands in a direct and unbroken succession, and burns the plaintiff’s woods, the court commits no error in leaving to the jury to decide whether the railroad company’s negligence was or was not the proximate cause of the plaintiff's injury.

      Appeals—Assignments of error—Motion for judgment n. o. v.

    4. An assignment of error to a refusal to enter judgment for defendant n. o. v. will not be considered where the record discloses no exception to the action of the court below in so refusing, or any bill sealed by the court.
    Argued Oct. 27, 1910.
    Appeal, No. 105, Oct. T., 1910, by defendant, from judgment of C. P. Clearfield Co., Feb. Term, 1909, No. 102, on verdict for plaintiffs in case of J. H. Hunter v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Negligence for damages to woodland caused by sparks from a locomotive. Before A. O. Smith, J.
    At the trial the court permitted the plaintiffs to show under objection and exception the value of the land immediately before the fire and immediately thereafter. [9-14]
    The court charged in part as follows:
    [As a matter of fact the plaintiffs have not shown any defect in the spark arrester directly or in the engines in any way and there is no evidence pointing to a negligent operation of the engines so then so far as that branch of the case is concerned the negligence alleged here depends wholly upon the ordinary operation of an engine and train, and the negligence alleged that the right of way was in such condition as would in a very dry season, such as this was become a menace and danger, and that such omission of duty on their part was negligence.
    Now as we understand the law, it is true, that even though it is not shown that there was a defective engine or negligence in the operation of an engine, if the right of way is in such condition as that even in the ordinary operation of a train fires would be started, which are liable to be communicated to other properties, the failure of the railroad company to keep its right of way in a proper condition does amount to negligence under the circumstance. All of the facts and circumstances of such a case must be taken into consideration, therefore. The time of year, the state of the weather, the dryness and general combustibility of such vegetable or other matter along the line of the right of way are to be taken into consideration, for the reason that all of these things are supposed to be within the knowledge of the railroad company and the consequences which follow from leaving that sort of material along the right of way even from the ordinary use of a locomotive. It is a matter of common and ordinary knowledge that some sparks are thrown from an engine thus operated. It seems to be impossible to run engines burning soft coal without some sparks being thrown out. The use of spark arrestors it is not claimed are intended to completely prevent the passage of some small sparks of fire. In this case, therefore, your first question is, whether there were leaves, grass and chunks, dry material of any kind, negligently left upon the right of way. One or two witnesses for the plaintiffs testify that there was in this case and that it was this which was first seen on fire.
    On the part of the defendant it is claimed that the right of way was clean, and two or three of the section men were called to show that, men who actually did the work and who cleaned up the track at that time particularly because there was an annual inspection to be had very shortly thereafter. They swear that there was nothing on which grass could grow at the point in question. It is for you, therefore, to say, whether or not it is true, as alleged by the plaintiffs under this testimony, that there was such rubbish along the right of way, very combustible at that time, which amounted to negligence or carelessness on the part of the railroad officials in leaving it there. Second, it is for you to determine whether or not this rubbish, leaves, etc., if you find it to have been there, was the means of creating this fire, which ran up over the hill from that point and which on the second day thereafter burned the property of these two plaintiffs. [8]

      Verdict and judgment for plaintiff for $875. Defendant appealed.

      Errors assigned were (1, 2) refusal of binding instructions for defendant; (3) refusal to charge that the fire was the proximate cause of the injury; (8) portion of charge as above, quoting it; (9-14) rulings on evidence, quoting the bill of exceptions; (20, 21) refusal of defendant’s motion-for judgment non obstante veredicto.

      Hazard Alex. Murray, with him Thomas H. Murray, and James P. O’Laughlin, for appellant,
    cited: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Taylor v. R. R. Co., 174 Pa. 171; Robb v. Carnegie Bros. & Co., 145 Pa. 324; McGettigan v. Potts, 149 Pa. 155; Baylor v. Stevens, 16 Pa. Superior Ct. 365.

      Singleton Bell, with him Howard B. Hartswick, and W. Clark Miller, for appellees,
    cited: Stephenson v. R. R. Co., 20 Pa. Superior Ct. 157; Elder Twp. School Dist. v. R. R. Co., 26 Pa. Superior Ct. 112; Penna. R. R. Co. v. Kerr, 62 Pa. 353; Penna. R. R. Co. v. Hope, 80 Pa. 373; Haverly v. R. R. Co., 135 Pa. 50; Gudfelder v. Ry. Co., 207 Pa. 629.
    March 3, 1911:
   Opinion by

Morrison, J.,

The above cases were brought on the same day and they were tried together and in each case a verdict and judgment thereon went in favor of the plaintiff, and the defendant took a separate appeal in each case. The cases are practically alike in all respects, except as to the contributory negligence of Nelson V. Hunter, and we will dispose of that question by a separate opinion filed in the appeal in his case at No. 106, October Term, 1910. In all other respects this opinion which will be filed in the John H. Hunter case is intended to apply to both cases.

The plaintiffs owned adjoining farms in Clearfield county on each of which there was a wood lot with growing timber, sprouts, etc., standing thereon. The Nelson V. Hunter farm of 104 acres is located about 400 feet from the right of way of the defendant company with another tract of land intervening. The John H. Hunter farm of 102 acres is located about 1400 feet from the same right of way, with two other separate tracts of land intervening. On October 12, 1908, about six o’clock in the morning, a fire was seen burning on the right of way of defendant in two different spots by Nelson V. Hunter, one of the plaintiffs, who is a son of the other plaintiff, John H. Hunter. No attempt was made by Nelson V. Hunter to put out or stop the fire but he drove away and did not return to his farm until that evening when he discovered fire burning on' his land, but not then burning the property claimed for. The fire continued to burn all of the next day and until October 14. Nelson V. Hunter made no effort to put out or stop the fire until the latter date when the fire began to spread over onto his father’s property. The latter is an old man and we do not find in the record any evidence that he knew the fire was in his wood lot nor that he was guilty of any clear contributory negligence.

We find in the record twenty-one assignments of error. Several of these apply specially to each case but a large number of them seem to be aimed at both cases. We do not believe that any one, on cool consideration, now believes that the learned court erred twenty-one times in trying these cases. In each of the cases we find an assignment of error that the court erred in refusing to enter judgment in favor of the defendant non obstante veredicto, but we fail to find in the record any exception noted by defendant’s counsel to this action of the court, or any bill sealed by said court. For this reason we cannot consider these assignments of error. This has often been decided under the Act of April 22, 1905, P. L. 286: International Savings & Trust Co. v. Printz, 37 Pa. Superior Ct. 134; McGinnis v. Ins. Co., 38 Pa. Superior Ct. 390. However, in each case the defendant requested binding instructions in its favor and therefore the question of each plaintiff’s right to recover is raised.

Counsel for appellant state the questions involved to be: (a) “Question of proximate cause as affected by remoteness of property from right of way and of time when fire reached property, (b) Insufficiency of proof of negligent condition of right of way. (c) Whether the before and after rule applies to a case of this kind, (d) Contributory negligence of plaintiffs.”

The first case cited by appellant’s counsel is Taylor v. R. R. Co., 174 Pa. 171, on the question of the accumulation of combustible material on the right of way. We have examined that case and under the facts in the present one do not think it controlling. The next cases cited are on the before and after rule as to damages. Robb v. Carnegie Bros. & Co., 145 Pa. 324, is one of them but we do not think it applicable to the facts in the present case. The next is McGettigan v. Potts, 149 Pa. 155, but we are not convinced that the measure of damage in the present cases is ruled by that authority. The court followed a line of cases of which Baylor v. Stevens, 16 Pa. Superior Ct. 365, is a sample and in this we think the court did not err. We are of the opinion that in the present cases where each plaintiff owned a farm, with a wood lot and timber, young trees and sprouts growing thereon, which were destroyed by the fire and which certainly before the injury added to the value of the farms, the court did not err in instructing the jury to ascertain from the evidence the value of the farms, immediately before the fire and immediately thereafter, and allow the defendant as damages the difference in values so found: Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279.

We will now briefly discuss these cases under the following heads: (a) Was the fire communicated from the engines of the defendant? (b) If so, was the injury caused by the negligence of the defendant? (c) If so, was such negligence the proximate cause of the injury? (d) Were the plaintiffs guilty of contributory negligence?

First, was the fire communicated from the engine of the defendant company? In our opinion, under the evidence of Nelson V. Hunter, Jos. H. Strong and Daniel Irvin, it was for the jury to say whether the fire started at the time and place alleged by the plaintiffs, and whether the fire was probably communicated from the engine of the defendant: Henderson v. R. R. Co., 144 Pa. 461; Stephenson v. R. R. Co., 20 Pa. Superior Ct. 157; Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112; Byers v. B. & O. R. R. Co., 222 Pa. 547.

Second, was the injury caused by the negligence of the defendant? On this question we think the testimony of several witnesses on the part of plaintiffs was sufficient to carry this matter to the jury. There was positive testimony that there were grass, leaves and chunks accumulated along the right of way and had been there for a long time, and that it was a very dry season. The condition of things as described by the witnesses raised the question as to whether or not there was an absence of care according to the circumstances: Stephenson v. R. R. Co., 20 Pa. Superior Ct. 157; Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112. “Whether the defendant was negligent in this particular and whether the injury was such a natural and probable consequence of the negligence that it might and ought to have been foreseen as likely to follow the act, were questions for the jury: Stephenson v. Penna. R. R. Co., 20 Pa. Superior Ct. 157.

Third, was such negligence the proximate cause of the injury? A strong effort was made in the court below to secure a ruling that as a matter of law the injury to plaintiffs was too remote and that there could be no recovery. This contention would seem to have been based on the ruling in Penna. R. R. Co. v. Kerr, 62 Pa. 353, but that decision was based on a case where the engine of the railroad company set fire to a building and that building set fire to a hotel some distance away. That case is not authority where there is a continuous burning across lands in a direct and unbroken succession: Penna. R. R. Co. v. Hope, 80 Pa. 373; Heverly v. R. R. Co., 135 Pa. 50. To apply the doctrine of Penna. R. R. Co. v. Kerr to the present cases would be to ignore the cases of Stephenson v. R. R. Co., and Elder Twp. School Dist. v. R. R. Co. See also Gudfelder v. Ry. Co., 207 Pa. 629. In the latter case it was held as stated in the syllabus: “In determining whether a negligent act is the proximate or remote cause of an injury, the jury must consider whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause—the negligent act. ” In the present cases the question of proximate cause, as above defined, depended upon facts to be found by the jury. Did the facts contribute a continuous succession of events so linked together that they became a natural whole. If the facts of a case are in dispute, the question of remote or proximate cause must go to a jury. In the present cases it is a nice question whether the court was not warranted in instructing the jury that if the fire negligently started on the defendant’s right of way and burned across other lands and damaged the plaintiff’s wood land, that the proximate cause was the fire which started on the right of way. But the court submitted this question to the jury and that was all that the defendant could, under the evidence and the law, justly expect. See also Bunting v. Hogsett, 139 Pa. 363.

Fourth, were the plaintiffs guilty of contributory negligence? So far as we can gather from the testimony there was certainly no clearevidence of contributory negligence on the part of John H. Hunter. He was an old man and he does not appear, from the evidence, to have had any knowledge of the fire prior to the injury to his property. As to him, the court could not have decided, as a matter of law, that he was guilty of contributory negligence, and that question was properly submitted to the jury and it was found in his favor. Of this submission the defendant has no just cause of complaint.

The assignments of error are all dismissed as to the case of John H. Hunter, and his judgment is affirmed.


text:
    Hunter v. Pennsylvania Railroad Company, Appellant
    (No. 2).

      Railroads—Negligence—Fire from sparks—Contributory negligence— Evidence.

    In an action against a railroad company to recover damages for the destruction of woodland by sparks negligently emitted from a locomotive, plaintiff is guilty of contributory negligence as a matter of law, where the evidence shows that he saw the fire soon after it started on the railroad company’s right of way abutting on another person’s property, and made no effort to extinguish it, or to induce anybody else to extinguish it until two days afterwards when the fire reached his own land; and it is no excuse for him that he was driving a young team at the time, if it appears that he could easily have driven the team to his own barn, which was not far away, and could have, at least, made an effort to put out the fire.
    Argued Oct. 27, 1910.
    Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of C. P. Clearfield Co., Feb. Term, 1909, No. 102, on verdict for plaintiff in case of Nelson V. Hunter v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Negligence for damages to woodland caused by sparks from a locomotive. Before A. O. Smith, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $160. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Hazard Alex. Murray, with him Thomas H. Murray and James P. O’Laughlin, for appellant.

      Singleton Bell, with him Howard B. Hartswick and W. C. Miller, for appellee.

      March 3, 1911:
   Opinion by

Morrison, J.,

For the reasons given in the opinion this day filed in the case of John H. Hunter v. Penna. R. R. Co., ante, p. 468, we would affirm the judgment in this case were it not for the clear, precise and convincing testimony that this plaintiff was guilty of contributory negligence. He saw the fire soon after it started on defendant’s right of way on the morning of October 12, 1908, and he did not make the slightest effort to extinguish it or to induce anybody else to extinguish it, until the fourteenth, the day the damage was done to his property. His excuse for not extinguishing the fire, or attempting so to do, was that on October 12, he was driving a young team and could not leave them. This excuse is idle in the face of the fact that the fire was near to his property and he was only a few minutes drive from his home and could easily have driven his team back into the barn, and could have at least made an effbrt to put out the fire. In our opinion it was error for the court to submit to the jury the question of his negligence. We think a jury ought not to have been allowed to draw any other inference from his conduct than that of contributory negligence, and the court erred in not directing a verdict in favor of the defendant on that ground. This should have been done on plaintiff’s own testimony. Even though some one else is guilty of negligence in allowing a fire to start, a man cannot stand idly by and allow it to spread to his property and destroy it, without making a reasonable effort to put it out. For the above reasons we sustain the assignments of error as to the negligence of the plaintiff. .

Judgment reversed.


author: Henderson, J.,

text:
    Carter, Appellant, v. Lebzelter.

      Deeds—Boundaries—Private alley—Title to center line.

    1. Where a deed calls for a private alley as a boundary, the grantee takes title to the center line of the alley.
    2. Where the same person owns lots on both sides of a private alley, the title of the lots extending to the center of the alley, he may cover over that portion of the alley which he owns, provided he does not interfere with other owners along the line of the alley who have the right of “ingress, egress and regress, and passage over and along” the alley.
    Argued Nov. 16,1910.
    Appeal, No. 228, Oct. T., 1910, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket, No. 5, page 139, dismissing bill in equity in case of Elizabeth Carter v. William F. Lebzelter and Charles J. Lebzelter.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Hassler, J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      John E. Malone, for appellant,
    cited: Ellis v. Academy of Music, 120 Pa. 608; Gebhart v. Graves, 36 Pa. Superior Ct. 228; Mershon v. Ins. Trust & Safe Dep. Co., 208 Pa. 292; Mershon v. Walker, 216 Pa. 41; Schmoele v. Betz, 212 Pa. 32.

      W. U. Hensel, for appellee,
    cited: Duross v. Singer, 224 Pa. 573; Patterson v. R. R. Co., 26 W. N. C. 327; Holmes v. Bellingham, 7 C. B. (N. S.) 329; Stevenson v. Stewart, 7 Phila. 293; Atkins v. Bordman, 43 Mass. 457; Gerrish v. Shattuck, 132 Mass. 235.
    March 3, 1911:
   Opinion by

Henderson, J.,

The appellant is the owner of a life estate in lot No. 32 on East Walnut street in the city of Lancaster at the rear of which is a private alley four feet wide appurtenant to this lot and other lots abutting on the alley among which are those occupied by the defendants. Her right is one of “ingress, egress and regress, and passage over and along” the alley. Philip Lebzelter had been the owner of lot No. 28 on East Walnut street by whom it was willed to the Lancaster County Trust Company and Wm. F. Lebzelter in trust to collect the rents, issues and profits thereof and pay the net income to Wm. F. Lebzelter. This lot is on the opposite side of the alley from another lot, No. 236 North Duke street, owned by Wm. F. Lebzelter, to both of which lots the alley is appurtenant. The defendants occupy both of the last described lots and in making improvements thereon extended a shed or covering, which theretofore had projected over the alley, to a line nearer to the property devised by Philip Lebzelter than it had extended. This roof is twelve feet above the ground. For more than twenty-one years prior to 1908 the roof had projected part way over the alley and when in 1908 it was rebuilt it was extended so that it nearly covered the width of the alley. The roof is not connected with the plaintiff’s property and her only right with reference thereto is that which she holds by reason of the easement appurtenant to the lot occupied by her. As the defendants own or control the lots on the opposite sides of the alley where the roof is constructed the question is whether they may use the space above the surface in connection with their lots provided that they do not in any way interfere with the free use of the alley as a passageway by those entitled to it. The defendants succeeded to the rights of the grantor of the way to the extent to which they existed in the land now owned by them and this interest is the fee subject to the right of way. The opinion of Chief Justice Cockbtjrn in Holmes v. Bellingham, 7 C. B. (N. S.) 329, held it to be a reasonable and sound doctrine that the same principle which applied to the boundary limit on land abutting on a public road applied with equal force to the case of a private road and that the same reasoning which gave to the abutting owner title to the middle line of a public road in case of a vacation of the same carried the fee to a grant of land bounded by a private way to the middle line thereof in the absence of any agreement to the contrary. This view is also taken in Ellis v. Academy of Music, 120 Pa. 608, where the opinion in Holmes v. Bellingham, 7 C. B. (N. S.) 329, is approved; and the doctrine is reaffirmed in Saccone v. West End Trust Co., 224 Pa. 654; Oliver v. Ormsby, 224 Pa. 564; and Duross v. Singer, 224 Pa. 573. In Oliver v. Ormsby, 224 Pa. 564, Mr. Justice Potter, after referring to the law bearing on the right of a grantee of land bounded by a public road or street to hold to the middle of such road or street in the absence of an express or clearly implied reservation, proceeds to say “but we go further than this and hold that whether the alley be public or private if it be actually laid out and opened and is appurtenant to the property abutting upon it the rule is the same. The call for the alley will carry the title to the center line in the absence of an expressed intention by the grantor to the contrary.” Nothing in the finding of facts warrants the conclusion that the grantor of the alley in question intended to retain a title to the four-foot strip. He could not occupy it and its width and length and relation to the lots to which it is appurtenant forbid the inference that it could have been the intention of the grantor to retain the fee in the alley. It was held in Duross v. Singer, 224 Pa. 573, that “the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all the other incidents of ownership and may build over the way provided he does not materially impair the use of the easement by obstructing the way and shutting off the light necessary for its reasonable and convenient use.” Such act of the owner is consistent with his title but must be exercised with due regard to any person interested in the way. The fee of one of these lots being in the defendant, Wm. F. Lebzelter, and he being a cestui que trust as to the other and presumably having the consent of the holder of the legal title to the construction of the roof the defendants occupy the same relation to the right of way which would exist if they had made the grant over their own land and have the right to use the space occupied by the roof, provided it in no wise obstructs or hinders the plaintiff. She does not allege that her enjoyment of the easement is in any degree interfered with and nothing in the agreement of facts permits the inference that she has not all the privileges in every respect which she would have if the roof were removed. It is a passageway for pedestrians only and there is no suggestion that the structure of which the appellant complains at all impedes her free use of the way. It may be conceded that- an OAvner of property abutting on one side of a private alley having merely the right in common with the other abutting owners for passage over the alley could not construct a shed extending “almost” over the entire width of the alley. .This is the proposition which the appellant presents but it is not applicable to the facts in the case. Two opposite abutting owners are acting in concert and are exercising their right with reference to the soil in a way not inconsistent with the rights of the plaintiff. It is not the case of an adjoining owner on one side of the way so using it as to subject another entitled to the use thereof to a risk in ingress and regress as in Mershon v. Fidelity Ins. Trust & Safe Dep. Co., 208 Pa. 292; nor where one erects an actual obstruction in the way as was done in Gebhart v. Graves, 36 Pa. Superior Ct. 228, in the form of a fire escape built out over the alley; nor of an abutting owner whose property is not appurtenant to the way who erected a fire escape therein and thus subjected the alley to a use to which he was not entitled: Schmoele v. Betz, 212 Pa. 32; nor a case where a previous action had established the fact that the defendant maintained a nuisance in the way which was “a constant challenge to the plaintiff’s right to have a free and unobstructed way over the alley:” Ellis v. Academy of Music, 120 Pa. 608. If it can be shown that the plaintiff’s enjoyment of the way is impaired even in a slight degree the fact that the person doing the injury owns the ground on the opposite sides of the way where the interference occurs does not justify such disturbance nor relieve him from an action, but in all of the cases cited by the learned counsel for the appellant the facts disclose some detriment to the party complaining and the absence of such a fact in this case justifies the court in the conclusion reached.

The decree is affirmed at the cost of the appellant.


text:
    Manegold v. Quinn, Appellant.

      Landlord and tenant—Distress for rent—Constable’s sale—Statutory requirements—Appraisement by two reputable freeholders—Notice—Description of goods—Notice to tenant—Notice to owner—Actions—Trespass —Replevin.

    1. A person claiming personal property by virtue of a constable’s sale under a distress proceeding for rent in arrears, must show affirmatively that all the statutory requirements of such sale have been complied with; such, for instance, that an appraisement has been made by “two reputable freeholders.” lie must also show that a proper description of the property was given in the notice of seizure and sale. A description in the notice that the property seized was a “Meyer” upright piano is fatally defective, where it appears that the piano was in fact an “Opera” upright piano.
    2. A notice given to the tenant of the seizure and sale of the goods will not be a notice to the owner unless the notice properly describes the goods seized.
    3. Where the proceedings on a landlord’s warrant of distress are so irregular and illegal that the sale under the warrant does not pass title, the owner of the goods may subsequently sue either in replevin or trespass.
    Argued Nov. 16, 1910.
    Appeal, No. 212, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Dec. T., 1908, No. 49, for plaintiff non obstante veredicto in case of F. A. Manegold v. Michael C. Quinn.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Replevin for a piano. Before Endlich, J.
    At the trial the jury returned a verdict for the defendant.
   On a motion for judgment for plaintiff non obstante veredicto Endlich, P. J., filed the following opinion:

At the trial, there being no facts in dispute, plaintiff asked for binding instructions in his favor. The request was declined, a verdict directed for defendant, and a rule for judgment for plaintiff upon the whole record, notwithstanding the verdict, granted. Since under the Act of April 22, 1905, P. L. 286, such a judgment may be entered: Murphey v. Greybill, 34 Pa. Superior Ct. 339, 343, 334, the course adopted was unobjectionable: see Fisher v. Scharadin, 186 Pa. 565.

In December, 1907, one Shewell, under a written contract, hired from Manegold & Britz an “Opera” upright piano. It was at once delivered to him at No. 652 Schuylkill avenue, Reading, where he resided with his mother, Mrs. Keim, the tenant of the premises, rooming and taking his meals there and paying a stipulated weekly board. In May, 1908, upon default by Mrs. Keim in the payment of rent, a landlord’s distress warrant was issued against her, under which the piano was seized and removed to a storehouse and subsequently sold to Mengel, from whom defendant purchased it. In his possession it was replevied by the plaintiff, who admittedly was its owner at the time of the seizure, who had no notice of the distress proceedings and who contends that they were unlawfully conducted and therefore void as against him. The defendant claiming title by virtue of a constable’s sale under the distress proceedings for rent in arrear, the burden was upon him to show affirmatively that all the statutory requirements of such a sale had been complied with, and the constable acting as the agent of the landlord and not as a public officer, in the discharge of that burden the defendant was not aided by any presumption in favor of the regularity and legality of the acts of public officers. These principles are clearly established by a number of decisions, among which may be cited: Murphy v. Chase, 103 Pa. 260; Davis v. Davis, 128 Pa. 100; Ramsdell v. Seybert, 27 Pa. Superior Ct. 133.

One of the objections here urged is the failure to show that the appraisement required by the statute was made by “two reputable freeholders” as therein directed. According to National Cash Reg. Co. v. Kirkpatrick, 16 Pa. Dist. Rep. 256, this would seem to be a fatal defect. Not less serious appears to be the objection based upon the character of the notice of seizure and sale given in this instance. The notice exacted by the statute, manifestly designed not only to attract bidders to the sale but to apprise anyone having a claim upon or interest in the property of its imminence, must “be sufficient to inform . . . . the owner what are the goods taken:” Snyder v. Boring, 4 Pa. Superior Ct. 196, 200. If its description of the property be such as to make it doubtful as a matter of fact whether it answered that purpose or not, its sufficiency may become a question for the jury: Welsh v. Warrington, 28 Pa. Superior Ct. 229. But where it is palpably and necessarily misleading as to the identity of the goods seized, so as effectually to throw the owner off his guard, it cannot but be adjudged bad as a matter of law. Here the notice specified the piano seized, not as an upright “Opera” piano, but as a “Meyer ” piano. That this notice not only was incapable of informing the plaintiff of the seizure of his piano, but if come to his attention was bound to mislead him on that point can hardly be disputed. It was in fact no notice at all of the seizure that had been made, but of something else that had never occurred—none of a sale that was going to be made, but of one that was never to take place.

' The only conclusion permissible under these circumstances appears to be that, so far as the plaintiff’s title to the piano is concerned, the distress proceeding was incapable of affecting it, that therefore the purchaser under it took nothing, and that his vendee, the defendant, acquired no right which he can assert against the plaintiff in this action. In this view it is unnecessary to decide whether the form of the oath administered to the appraisers was a sufficient compliance with or a fatal departure from that prescribed by the statute—or whether or not the piano was exempted from seizure for arrears of rent due by Mrs. Keim as the property of a “boarder,” within the ruling in Riddle v. Welden, 5 Whart. 9; Oliver v. Wheeler, 26 Pa. Superior Ct. 5, and similar cases.

It was agreed upon the trial that the value of the piano is $350. For this amount, with interest from November 25, 1908, the plaintiff is entitled to judgment.

And now, May 2, 1910, the rule to show cause is made absolute and it is ordered that all the evidence taken upon the trial of this cause and certified be filed as part of the record thereof—that judgment be entered for plaintiff upon the whole record, notwithstanding the verdict, for $350 and interest thereon- from November 25, 1908—and that an exception be granted to defendant to the action of the court in the premises.

On a motion for reargument Endlich, P. J., filed the following opinion:

A reargument was granted in this case because of certain well-founded criticisms of the disposition made of it in the opinion- filed May 2, 1910, reported in 2 Berks County L. J. 263. A very careful reconsideration of the matters previously advanced in support of this rule, and an equally careful consideration of what has been newly urged in defendant’s behalf upon the reargument, have, however, led to the same conclusion previously reached.

1. It is needless to recite .the decisions establishing the fundamental proposition that the defendant claiming title by virtue of a constable’s sale under a distress proceeding for rent in arrear, must show affirmatively that all the statutory requirements of such sale have been complied with, and that, the constable acting as the landlord's agent and not as a public officer, the defendant is not aided in the discharge of that burden by any presumption in favor of the regularity and legality of the acts of public officers.

2. Remembering the purpose of the notice of seizure and sale prescribed by the statute and the rule laid down in Snyder v. Boring, 4 Pa. Superior Ct. 196, 200, as to it^s sufficiency, it can hardly be doubtful that a notice positively misleading on the point of the identity of the goods seized and thereby throwing the owner off his guard, is a fatal departure from the requirements of the statute. Nor in this respect does it appear to help the defendant here that the notice given described the piano seized as a “Meyer” upright piano (instead of simply a “Meyer” piano, as assumed in the opinion heretofore filed), when in fact it was an “Opera” upright piano. The one was quite as likely to deceive the plaintiff as the other. The piano he had hired to Shewell was an upright “Opera.” The distress proceeding was against Mrs. Keim, in whose house Shewell had a room. The plaintiff, seeing that in that proceeding an upright “Meyer” piano had been seized, was not bound to suppose that there was no such piano there belonging to Mrs. Keim, and that the instrument seized was his wrongly described.

3. It is contended, however, that under our statute permitting the notice to be given to the tenant or the owner of the goods, if it be so given the tenant is the agent of the owner for the purpose of transmitting it to the owner: Caldcleugh v. Hollingsworth, 8 W. & S. 302, 303; that therefore, the fact here being that notice of the seizure of the piano in question was given to Mrs. Keim, who could be under no misapprehension as to its identity, it must be considered that plaintiff had notice of the seizure of his piano; and that thereupon, under the ruling in the case just cited and in that of Esterly Machine Co. v. Spencer, 147 Pa. 466, the only remedy of the plaintiff was an action of replevin brought “within five days next after such distress taken, and notice thereof,” under sec. 1, Act of March 21, 1772, 1 Sm. L. 370. The answer to the contention that the tenant is the agent of the owner for the purposes of the notice required is that it can apply only where the notice is such as satisfies the demands of the statute. The decision in Briggs v. Large, 30 Pa. 287, 291, explains Caldcleugh v. Hollingsworth, 8 W. & S. 302, as not intended to recognize any authority in the tenant, as agent of the owner, to waive anything by the statute made essential in the proceeding. The same doctrine is held in Toledo Tinware Mfg. Co. v. Duff, 15 Pa. Superior Ct. 383, and Harris v. Shaw, 17 Pa. Superior Ct. 1. Accordingly a notice to the tenant can be a notice to the owner only where, if given to the latter directly, it would have been such notice as the law required—such as would have informed him of the identity of the article seized with that belonging to him. As already seen, the notice given in this case was not such, and for the purpose of waiving its defect the tenant cannot be regarded as the plaintiff’s agent. The fact thus being that the plaintiff had no lawful notice of the seizure of his piano, the principle which would restrict him to a reclaiming of his property within five days thereafter does not apply to him. As explained in Brown v. Stackhouse, 155 Pa. 582, it applies only where the owner has notice. And so, in Harris v. Shaw, 17 Pa. Superior Ct. 1, it is said at p. 4, that “it is the duty of the owner of the goods levied upon for another’s rent to bring replevin before their sale, if he have knowledge of the distraint and opportunity to take out his writ.”

4. Finally, it is urged that if the plaintiff had any right to sue for the seizure of his piano, his remedy was not an action of replevin, but an action of trespass. No doubt where the landlord fails to proceed strictly in compliance with the act of 1772 and by departing from it renders himself a trespasser ab initio, he makes himself liable to an action of trespass: Davis v. Davis, 128 Pa. 100, and accordingly the right of the owner to maintain such action against him has been repeatedly recognized: Davis v. Davis, 128 Pa. 100; Esterly Machine Co. v. Spencer, 147 Pa. 466; Brown v. Stackhouse, 155 Pa. 582; Snyder v. Boring, 4 Pa. Superior Ct. 196; Toledo Tinware Mfg. Co. v. Duff, 15 Pa. Superior Ct. 383; Harris v. Shaw, 17 Pa. Superior Ct. 1. But it does not appear to have been decided that he cannot maintain replevin. So to hold would seem’ to involve the contradictory propositions, (a) that tide owner of goods sold by way of distress without lawful notice to him is not affected by the statutory limitation of the action of replevin within five days after seizure, and (b) that that provision cuts him out of the remedy by replevin except within the period thus limited. If unaffected by the provision, it is difficult to see why he should not be entitled to any one of the remedies that are appropriate to the kind of redress he seeks. Trespass for the recovery of damages would undoubtedly lie, if he chose that form of redress: But if he prefers to proceed for the goods taken, replevin is appropriate; for under our law it may be maintained wherever one claims goods in the hands of another, without regard to the manner in which possession was obtained: Herdic v. Young, 55 Pa. 176; Ferguson v. Lauterstein, 160 Pa. 427.

In conclusion it may be proper to notice the suggestion made by counsel for defendant that the agreement, at the trial, fixing the value of the piano at $350 was inadvertent. and unjust to the defendant—a suggestion intended not as laying a substantive ground for setting aside the verdict, but as indicative of a circumstance calculated to emphasize the hardship on the one hand and the undue advantage on the other resulting from it. The value of the piano, in December, 1907, as appears from the contract, was $375. The sum of $68.00 was paid upon the contract, i. e., $40.00 allowed for an organ taken in exchange and $10.00 paid in cash being agreed to be “the rent for the first month only,” and the remainder being paid subsequently. The instrument was sold after it had been in use for about five months, having been appraised at $160. It may, indeed, appear that the deduction of $25.00 for deterioration incident to that use is less than might have been expected; But there is nothing to show that as a matter of law it is wrong. To a credit for payments previously made upon it, the defendant can hardly be looked upon as entitled. As between plaintiff and defendant the question was one simply of the then value of the instrument; and upon that question the agreement of the parties is conclusive upon the court, at least in the absence of facts plainly indicative of mistake by data leading with certainty to a different estimate.

Error, assigned was in entering judgment for plaintiff n. o. v.

Cyrus C. Derr, with him Edward S. Kremp and Ralph H. Mengel, for appellant.

Isaac Hiester, with him Walter 8. Young, for appellee.

March 3, 1911:

And now, August 20,1910, the order made May 2,1910, is confirmed.

Opinion by

Morrison, J.,

This is an action of replevin for a piano, the title to which is conceded to have been in appellee prior to an attempt to sell the same on a landlord’s distress warrant for rent, and the purchase and taking possession of the same by the appellant. The important questions below were: (a) Were the proceedings on the landlord’s warrant so illegal as to pass no title to the appellant for the piano? (b) If the above question is answered in the affirmative could the owner of the piano, appellee, maintain replevin therefor after five days from the seizure and such notice as was given in the present case, or was his only remedy an action in trespass?

The above questions have been carefully considered and correctly ruled by the learned court below in his opinion granting judgment non obstante veredicto in favor of the appellee, and in his opinion on a reconsideration of that judgment; and after a careful consideration of the very-clear and able arguments of the learned counsel for the respective parties we do not see that we can profitably add much to what has been so well said by the lower court.

We fully concur with the court below that the proceedings on the landlord’s warrant were so irregular and illegal that the sale did not pass to appellant, the title of the appellee to the piano. And that in such case it is optional with the owner to sue either in replevin or in trespass.

The assignments of error are all dismissed and the judgment is affirmed.