author: Porter, J.,

text:
    Commonwealth v. Wyoda, Appellant.

      Constitutional law — Mines and mining — Act of July If, 1897, P. L. 287.

    1. The Act of July 15, 1897, P. L. 287, entitled, “An Act to provide for the examination of miners in the anthracite coal regions of this commonwealth and to prevent the employment of incompetent persons as miners in the anthracite coal mines” is constitutional.

      Criminal law — Forgery—Miner’s certificate.

    2. On the trial of an indictment for forging a miner’s certificate where a witness testifies that he is familiar with the signatures of the miners’ examining board of the district, and with the certificates which they issue, he may be permitted to testify as to the differences between the certificate in question and the signatures thereto and the genuine certificates issued by the board.
    3. In such a case where it appears that the genuine certificates as well as the forged one were made out upon printed blanks which blanks were filled in with writing when the certificate was issued, it is competent for the commonwealth to prove that all genuine certificates were printed alike in a particular form, and upon a peculiar colored paper essentially different from that used in the certificate in question. The possession of other blanks similar to the one fraudulently filled out by the defendant raises no presumption in law of the defendant’s guilt, but such possession is evidence in connection with the other evidence in the case tending to show guilt.
    4. The competency and skill of a miner whose name has been inserted in a forged miner’s certificate cannot be considered on the trial of an indictment for forging such a certificate.

      Criminal law — Bribing constable — Presumption—Evidence.
    5. On the trial of an indictment for crime evidence is admissible that the prisoner had offered the constable who arrested him money to let him go; but it is reversible error for the court to charge the jury that such evidence raises a presumption of the prisoner’s guilt.

      Criminal law — Forgery—Guilty knowledge.

    6. On the trial of an indictment for forgery a conviction cannot be sustained unless it is shown that the defendant had knowledge that the instrument in question was forged.. The mere fact that the instrument was forged and that the defendant had uttered it, is not sufficient.

      Evidence — Spelling of foreign name — Forgery—Criminal law.

      7. The manner in which foreign proper names are spelled, and whether in spelling those names those familiar with the language use a “z” where in the English language an “s” would be used, are not questions of law, but of fact.
    Argued Oct. 5, 1910.
    Appeal, No. 8, March T., 1911, by defendant, from judgment of Q. S. Luzerne Co., April Sessions, 1910, No. 57, on verdict of guilty in case of Commonwealth v. Paul Wyoda.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for forgery. Before Garman, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [The defendant, Paul Wyoda, is charged in this indictment with two offenses, or in two counts, as we commonly express it; first, with forging the certificate in question; and, second, with uttering or issuing or putting in circulation — the wprd uttering has that significance in law.] [5]
    [It is of equal importance to the commonwealth, because if you believe the defendant to be guilty and convict him of the offense, it would have a tendency to stop a practice that might lead to a great loss of life in the coal regions of this state. The commonwealth has, in its police power, imposed by its mining laws great restrictions upon the mining of coal. You understand that it requires certain methods of ventilation, and it requires certain safeguards and protections to the men in the mines. One of the protections to the men engaged in mining is that they shall pass an examination before competent miners to determine their fitness to be intrusted with this solemn responsibility. Otherwise the lives of hundreds of men might be endangered in case of inefficiency or incompetency.] [6]
    [If he made that offer to the constable of $12.00 to let him go, it may be considered by you in determining the question of his guilt. Because, if when a man is arrested, he offers money to the officer for his release, the law raises a presumption that he is guilty in that case, and it requires an explanation at his hands.] [7]
    [Now, there is a proposition of the law that the possession of a forged instrument raises a presumption of guilt on the part of the beneficiary.] [8]
    [Now, it is also another principle of law that the possession of other similar instruments by him when accused of uttering the forgery, is sufficient to raise a presumption that the utterance was with guilty knowledge as to the false character of the document. The possession of this other lot, twenty-four in number, by Wyoda, raised the presumption as to guilty knowledge on his part, and a presumption against him as to the uttering of these documents.] [9]
    [But no matter what the intent of Chapulis may have been, if his intention was to be crooked, a dark-lantern business, as is argued, if the defendant furnished him with a fraudulent paper, if the defendant uttered a forged paper, the defendant might be guilty, even though Chapulis may also be guilty of a violation of the law.] [10] [It was said by Mr. Jones in his address: “You have got to convict this man on the commonwealth’s testimony.” Of course he meant as to certain particulars; because as an efficient, capable, good lawyer he understands, and you understand, that you must consider, with the commonwealth’s testimony, the defendant’s testimony and all the testimony in arriving at a conclusion.] [11]
    [If you find that this instrument was issued by Wyoda, and that it was issued with the intention that Chapulis should use it, as a genuine certificate, and that thereby some person might be damaged, it does not matter who might be prejudiced, it is not absolutely necessary that Chapulis be hurt, but if injury might result from the transaction, that is sufficient to infer the intent of fraud on the part of the perpetrator.] [12]
    [The word “Griffiths” is written upon this paper " Griffith 7,” Now, to the court that would be an indication that that name was written by a foreigner, from the well-known philological fact that in the foreign languages they write phonetically, and that in spelling "Griffiths” the foreigner is likely to put a “z” as an "s.”] [13]
    [The presumption of the law, at the time of the discovery of this forged document in the possession of Chapulis, was that he forged it. He explains that, and shifts the presumption, and is it for you to say whether you believe him or not — to Wyoda, as having issued it.] [14].
    [And then, in determining whether Wyoda did it, you must also consider what motive he would have; whether he would gain anything by it, or not; and in the determination of this question you will have to consider from that standpoint. If you believe, however, Chapulis, that Paul Wyoda handed him the paper, then the presumption is attached to Wyoda (and that is what I intended to say in my charge in chief), and then Wyoda must explain it.] [15]
    Defendant presented this point:
    Under all the evidence in the case there can be no conviction for the reason that the commonwealth having shown by Peter Chapulis that he was a competent and qualified miner, having passed the examination in Pittston, and having received from the miners’ examining board of that inspection district, a certificate of his competency, and qualification; that the issuing of the fraudulent certificate, which they now claim to be forged, was not in prejudice of any person’s rights. Answer: The point is denied. It is sufficient when the act charged is of such a character as might be prejudicial. If Chapulis’s old certificate was taken up, he was prejudiced. In other words, he had given up a good certificate for a bad one, and that certainly would prejudice anyone. Besides, he was prejudiced in the standing of the community as his arrest proved. While the law says to the prejudice of another, it is sufficient in law if somebody might be injured or prejudiced. Now, it is not necessary, either, gentlemen of the jury, to show the actual damage. It is enough that the accused designed and intended that the instrument was to be used as genuine and that there existed a possibility of defrauding some one. It is not necessary to show actual damage to Chapulis or to any one other person. But if you find that the defendant issued the paper, and that he intended that it should be used as a genuine mine certificate, that it was his purpose to pass Chapulis as a genuine miner on that certificate, it is sufficient to result in a conviction here even if no injury beyond that has been shown. [16]
    November 21, 1910:
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1) refusal to quash the indictment; (2-4) rulings on evidence sufficiently stated in the opinion of the Superior Court; (5-16) above instructions, quoting them.

      S. S. Herring, with him Roger Dever and B. R. Jones, for appellant,
    cited: Com. v. Hall, 23 Pa. Superior Ct. 104; Miller v. State, 51 Ind. 405; Fox v. People, 95 Ill. 71; Com. v. McClellan, 42 Pa. Superior Ct. 504.

      W. Alfred Valentine, district attorney, with him M. H. McAniff, assistant district attorney, for appellee,
    cited: Com. v. Silcox, 161 Pa. 484; Com. v. McManiman, 27 Pa. Superior Ct. 304; Com. v. Winkelman, 12 Pa. Superior Ct. 497; Com. v. Martin, 34 Pa. Superior Ct. 451.
   Opinion by

Porter, J.,

The first count of the indictment charged the defendant with the forgery of a miners’ certificate, purporting to be issued by the miners’ examining board of the third inspection district in the anthracite coal region of Pennsylvania, and certifying to the competency and qualifications of one Peter Chapulis, entitling him to be employed as a miner. The second count charged the defendant with fraudulently and knowingly uttering the said forged certificate. The appellant was acquitted upon the first count of the indictment and found guilty and sentenced upon the second count.

The first specification of error is based upon the refusal of the court below to quash the indictment. All the reasons urged in the court below for quashing the indictment have been expressly abandoned here save that which raised the question of the constitutionality of the Act of July 15, 1897, P. L. 287, entitled “An Act to provide for the examination of miners in the anthracite coal regions of this commonwealth and to prevent the employment of incompetent persons as miners in the anthracite coal mines.” The question raised by this specification of error has been considered by this court in Commonwealth v. Shaleen, 30 Pa. Superior Ct. 1; by the Supreme Court of this state in Commonwealth v. Shaleen, 215 Pa. 595 and by the supreme court of the United States in Shaleen v. Pennsylvania, 207 U. S. 603; and the constitutionality of the statute has been sustained. We are no longer free to consider the question an open one, and the specification of error is overruled.

The witness Davis testified that he was the assistant foreman of a mine and that the certificate in question had been presented to him by Chapulis, who sought employment as a miner. Pie identified the certificate, and having testified that he was familiar with the signatures of the miners’ examining board of the district, and with the certificates which they issued, it was entirely competent to permit him to testify as to the differences between the certificate in question and the signatures thereto and the genuine certificates issued by the board. The second specification of error is without merit. The genuine certificates as well as this forged one were made out upon printed blanks, the blank spaces being filled in with the proper data when the certificate was issued. The jury were in this case necessarily called upon to determine whether the certificate in question was a forgery, and any circumstance which would throw direct light upon that question was proper to be considered. It was, therefore, competent for the commonwealth to prove that all genuine certificates were printed alike, in a particular form and upon a peculiar colored paper, essentially different from that used in the certificate in question. This was a fact to be considered by the jury in determining whether the paper was a forgery. The third specification of error is overruled. The fourth specification of error is without an exception to support it and must be disregarded. It was entirely proper for the court to explain to the jury the offenses with which the defendant stood charged in the counts of the indictment, respectively, and the meaning of the legal terms used in charging such offenses. There was no impropriety in the action of the court in impressing upon the jury the importance of the case both to the defendant and the commonwealth, and the fifth and sixth specifications of error are dismissed. The eighth and fourteenth specifications of error relate only to the charge of forgery, not to that of knowingly uttering a forged instrument, and, as the defendant was acquitted upon the first count of the indictment, it is not necessary to consider in this case the questions raised by the eighth and fourteenth specifications of error. In passing upon the question of the guilt or innocence of the appellant it was the duty of the jury to consider not only the testimony produced by the commonwealth but also that produced by the defendant, and there was no error in the instruction of the court of which the eleventh specification of error complains. The question involved in this issue was whether the defendant had fraudulently made, or knowingly uttered, a forged certificate. The jury were not to pass upon the question of the competency and skill of Chapulis as a miner, nor had this appellant been authorized to pass upon that question, and the written request of the defendant for instructions, which sought to bring that question into the case, was properly refused. The sixteenth specification of error is dismissed.

There was evidence tending to show that the defendant, upon his arrest, had offered the constable $12.00 to let him go, and the language of the court, in instructing the jury, with regard to this evidence, is the subject of the seventh specification of error. The learned judge said: “If he made that offer to the constable of twelve dollars to let him go, it may be considered by you in determining the question of his guilt.” Had the learned judge left the matter here there would have been no just cause of complaint, for when one charged with crime uses violence to escape, or offers a bribe to the arresting officer to permit him to escape, it is proper for a jury to consider such fact in passing upon the question of the guilt or innocence of the defendant. “Evidence of the conduct of one accused of a crime at the time of his arrest is competent to show consciousness of guilt. Resistance to arrest is evidence of fear of punishment, and if the resistance be violent may be evidence of malice. The presumption is that one who is wrongfully accused will rely on his consciousness of innocence, while a guilty man will resort to violence in order that he may escape dreaded punishment. Such evidence is not sufficient of itself to warrant a conviction, but may have weight in connection with the other evidence in the case.” This statement of the principle involved was used by our Brother Henderson in Commonwealth v. McManiman, 27 Pa. Superior Ct. 304, and is abundantly supported by authority. The language of the court below, above quoted, was a correct statement of the law, but unfortunately, the court added: “Because, if when a man is arrested, he offers money to the officer for his release, the law raises a presumption that he is guilty in that case, and it requires an explanation at his hands.” The offer of a bribe to induce an officer to permit one charged with a crime to escape cannot be held to be more than an unlawful attempt to escape. Such an act can signify nothing more, as to the guilt of the defendant, than would flight from arrest. No presumption of law arises that the defendant is guilty of the crime for which he has been arrested. The utmost effect that such an act can have is, in connection with evidence of other facts, to give rise to an inference of fact; which must be drawn by the jury. We said, in the case above cited, that such evidence is not sufficient of itself to warrant a conviction, yet the instruction of the court below must certainly have been understood by the jury as warranting a conviction of the defendant of the offense with which he was charged, if they found the single fact that he had offered a bribe to the officer when he was arrested. The jury were being instructed by the court as to the law applicable to the case. Having been instructed in this manner, they would, if they found that the defendant had offered a bribe to the constable, find the defendant guilty of uttering a forged instrument because the law raised a presumption of his guilt, unless the defendant satisfactorily explained why he had offered the bribe. The error of the court was in stating that to be a presumption of law which was only a matter from which the jury were permitted to infer a fact, when taken in connection with other evidence tending to establish the guilt of the defendant. The seventh specification of error is sustained.

The language of the court which is the subject of the ninth specification of error charged the jury, in substance, that the possession by the defendant, when arrested, of other similar instruments when accused of uttering the forgery was sufficient to raise a presumption of law that the utterance of the forged instrument in question was with guilty knowledge as to the fraudulent character of the document: “The possession of this other lot, twenty-four in number, by Wyoda, raised the presumption as to guilty knowledge on his part, and the presumption against him as to the uttering of these documents.” The other lot of papers referred to in the charge, were blank, unsigned certificates, they were not forged documents, although they might have been used to facilitate further forgeries. The possession of these blanks was evidence to be considered by the jury, in connection with the other direct evidence in the case tending to show defendant’s guilt, in passing upon the question whether the defendant had guilty knowledge when he uttered the particular forged instrument in question, but no presumption of law that the defendant was guilty arose from the mere possession of these blanks. The blanks which were found in the possession of the defendant were not in fact “similar instruments,” in that they were not forged, they were merely tools that a forger might use. The ninth specification of error is sustained.

The defendant was acquitted upon the first count which charged the forgery of the instrument, but convicted upon the second count which charged that he unlawfully and fraudulently did utter the forged instrument, knowing it to be false and fraudulent. Those parts of the charge assigned for error in the tenth, twelfth and fifteenth specifications of error, when considered in connection with the second count of the indictment upon which alone the defendant was convicted, failed to properly instruct the jury as to the necessity for their finding that the defendant had guilty knowledge of the character of the instrument at the time he uttered it, in order to warrant a conviction upon the second count of the indictment. The jury must be convinced that the defendant had knowledge that the instrument was forged in order to warrant a conviction of fraudulent uttering: Commonwealth v. Hall, 23 Pa. Superior Ct. 104. The instructions in question left the jury free to convict the defendant if they found that the instrument was in fact forged and that the defendant had uttered it. This entirely relieved the jury from consideration of the question whether the defendant had guilty knowledge. These specifications of error are sustained.

The manner in which foreign proper names are spelled, and whether in spelling those names those familiar with the language use a “z” where in the English language an “s” would be used are not questions of law but of fact. The name of one of the miners’ examining board in the inspection district in question was Evan P. Griffiths, and that name in the certificate alleged to be forged was spelled Griffith z. Now, if that particular name would be spelled in that manner by a person of the foreign race, to which the defendant belonged, that ought to have been proved as a fact. The guilt of one charged with a serious offense ought not to be inferred from such a fact, unless the fact is proved. The thirteenth specification of error is sustained.

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


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Hottenstein v. Johnson, Appellant.

      Affidavit of defense — Practice, C. P. — Pleading—Statement of claim— Chech.

    1. Where an affidavit of defense has been filed to the merits and the court below has made absolute a rule for judgment for want of a sufficient affidavit of defense, the defendant cannot on an appeal from the judgment of the court below allege for the first time that the statement of claim is insufficient.
    2. In an action founded on a check the plaintiff averred in his statement of claim that the defendant forwarded the check to him with directions that he should pay the proceeds thereof to a third person, and that immediately upon receipt of the check he did pay over the amount of it to the person designated. The defendant in his affidavit of defense denied “that he made any such request to plaintiff, or that the plaintiff expended any of said moneys as he had alleged he did.” Held, that the affidavit of defense was sufficient.
    Argued Oct. 20, 1910.
    Appeal, No. 150, Oct. T., 1910, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1910, No. 3,113, making absolute rule for judgment for want of a sufficient affidavit of defense in case of C. D. Hottenstein v. Joshua M. Johnson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit on a check.

      Plaintiff’s statement of claim was as follows:
    C. D. Hottenstein, the above-named plaintiff, seeks to recover from Joshua M. Johnson, the above-named defendant, the sum of $282.06, being the amount of the check together with protest charges thereon made by the said defendant to the order of the plaintiff, dated June 3, 1909, for the sum of $280. Copy of said check is as follows:
    “Bellevue Stables No. 1125 Locust Street Philadelphia, June 3, 1909. $280.00. Union National Bank N. E.
    Cor. 3rd & Arch Sts. No. 1176. Pay to the order of C. D. Hottenstein Two hundred and Eighty-Dollars.
    “J. M. Johnson.”
    When the said check made by the defendant as aforesaid was presented at the Union National Bank for payment and payment thereof demanded, the bank refused to pay said check, stating that payment thereon was stopped. Whereupon the bank to whom the said check had been sent for collection, to wit, The Western National Bank of Philadelphia, caused the same to be duly protested. The said defendant forwarded the said check to the plaintiff with directions that he should pay the proceeds thereof to a Mr. Hain. The said plaintiff avers that immediately upon the receipt of said check he did pay to the said Hain, as requested, the sum of $280, whereupon the said defendant became liable to pay to the said plaintiff the amount of said check, which, however, he has failed to do, and hence the plaintiff brings this suit to recover the amount of said check, to wit, $280, plus the protest charges, $2.06, together with interest thereon from June 3, 1909.
    The affidavit of defense was as follows:
    Deponent says that no liability is imposed upon this deponent by reason of the making of said check and the same does not constitute an obligation or a cause of action.
    The plaintiff’s statement of demand is defective and insufficient to entitle the plaintiff to recover thereon by reason of the omission therefrom of formal averments.
    November 21, 1910:
    That while it is averred that deponent forwarded the said check with directions to pay the proceeds as therein stated, yet it is not alleged whether said directions were verbal or written and if in writing no copy thereof is attached to plaintiff’s statement.
    Deponent further avers that the alleged payment of said money upon the alleged request of deponent imposed no liability upon deponent for payment thereof to the plaintiff.
    Deponent denies that he made any such request to the plaintiff or that the plaintiff expended any of said moneys as he has alleged he did.
    All of which facts are true and deponent expects to be able to prove the same on the trial of this case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Charles L. Smyth, for appellant,
    cited: Penn Nat. Bank v. Kopitzsch Soap Co., 161 Pa. 134; Edison General Electric Co. v. Thackara Mfg. Co., 167 Pa. 530; Gould v. Gage, 118 Pa. 559.

      J. S.Freemann, for appellee,
    cited: Superior Nat. Bank v. Stadelman, 153 Pa. 634; Boal v. Gas Co., 23 Pa. Superior Ct. 339; International Savings & Trust Co. v. Stenger, 31 Pa. Superior Ct. 294; Odd Fellows Savings Bank v. Miller, 179 Pa. 412.
   Opinion by

Henderson, J.,

The plaintiff’s action is founded on a check drawn by the defendant to the plaintiff’s order a copy of which check is set forth in the statement of claim. The error assigned is to the action of the court in making absolute a rule for judgment for want of a sufficient affidavit of defense. The first proposition presented by the appellant is that the statement of claim is defective and insufficient. The procedure Act of May 25, 1887, P. L. 27, requires that the declaration “shall consist of a concise statement of the plaintiff’s demand” and that in the action of assumpsit it shall be replied to by affidavit. The plaintiff having filed his statement one of the things to be considered by the defendant when called upon to reply under oath was the sufficiency of the statement and if it was deemed insufficient the defendant should have raised the objection in the nature of a demurrer in the reply filed thereto. This would have given the plaintiff notice of the objection to the statement and would have enabled the court to determine its sufficiency at the threshold of the litigation. The objection was not made in the affidavit of defense and it would be unjust to the court below and the plaintiff to consider that question on this appeal. Having entered a general defense on the merits of the case it is too late now for the first time to object to the form of the statement: Heller v. Royal Ins. Co., 151 Pa. 101.

As to the sufficiency of the affidavit of defense it must be said that the greater part of it is vague, evasive and wholly insufficient. It contains one averment, however, which we think entitles the defendant to be’ heard by a jury. The statement after setting forth the fact of the presentation of the check by the plaintiff to the bank on which it was drawn and the refusal of the bank to pay because payment thereon had been stopped declares that “the said defendant forwarded the said check to the plaintiff with directions that he should pay the proceeds thereof to a Mr. Hain. The plaintiff avers that immediately upon the receipt of said check he did pay to the said Hain as requested the sum of $280, whereupon the said defendant became liable to pay to the said plaintiff the amount of said check” etc. The consideration for the check is thus set up and the request by the defendant to the plaintiff to pay the amount of the check to Hain and the payment of that amount to him by the plaintiff become material facts in the case. If the check was given to secure the plaintiff for the payment of the sum named to Hain and the amount was not so paid the plaintiff would not have a right of action against the defendant so far as the statement discloses a cause of action. To this averment of the declaration the defendant makes reply in the affidavit that he did not make any such request to the plaintiff as is set forth in the declaration and he denies that the plaintiff expended any money on his account as alleged in the statement. This, we think, is a sufficient denial that the defendant requested the plaintiff to pay out money on his account to Hain or that any money was so paid out by the plaintiff. Criticism is made by the learned counsel for the appellee of the use of the word “such” in connection with the request of the plaintiff and of the use of the word “expended” and our attention is called to the probability that the defendant used these words evasively, but this involves too great a refinement of construction when applied to an affidavit of defense. Giving to the whole paragraph of the affidavit the plain and ordinary significance which its language suggests it is a denial of the existence of the consideration on which the plaintiff rests his right to recover and as the plaintiff’s claim is based wholly on the fact that he paid out the amount stated in the check at the request and by the direction of the defendant we feel constrained to hold that this part of the affidavit is sufficient to put the plaintiff on proof.

The judgment is therefore reversed and the record remitted with a procedendo.


author: Rice, P. J.,

text:
    Lawrence County National Bank, Appellant, v. Kaufman.

      Promissory notes — Renewal of note — Parol agreement.

    Where a bank promises an accommodation maker of a note that it would give the principal all the time he needed to pay the note, if the latter would renew the note from time to time, pay the interest and what he could by partial payments on the principal, and the bank after several renewals, payments of interest and partial payments of principal refuses to renew the note, although it accepts the interest and a partial payment, but demands a larger payment, the makers cannot be deemed in default in not tendering another renewal note after the date when the previous note which had been refused became due.
    Argued April 28, 1910.
    Appeal, No. 175, April T., 1910, by plaintiff, from order of C. P. No. 3, Allegheny County, Aug. T., 1909, No. 150, discharging rule for judgment for want of a sufficient affidavit of defense in case of National Bank of Lawrence County v. Joseph S. Kaufman et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit upon a promissory note. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.

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

      S. S. Robertson, with him J. Norman Martin, for appellant.

      J. A. Langfitt, of Langfitt & McIntosh, for appellee,
    cited: Gandy v. Weckerly, 220 Pa. 285; Keller v. Cohen, 217 Pa. 522; Faux v. Fitler, 223 Pa. 568.

      November 21, 1910:
   Opinion by

Rice, P. J.,

This is an action of assumpsit on a promissory note made by the defendant to the order of the plaintiff on June 25, 1908, for $1,250, payable ninety days after date. It is alleged in the statement of claim, that on September 25, 1908, the defendant paid to the plaintiff $74.00 on account of the note — being $50.00 on the principal debt and $24.00 interest to November 25, 1908, — leaving the amount sued for $1,200, with interest from November 25, 1908.

The summons was issued to June term, 1909, and was returned served on William Kaufman, and non est inventus as to Joseph S-. Kaufman, the other maker. William Kaufman filed an affidavit of defense, in which he alleged that Joseph S. Kaufman was liable to the plaintiff as indorser upon a promissory note, for $1,700, of a certain corporation which had been adjudicated a bankrupt, and that suit had been brought by the plaintiff against Joseph S. Kaufman to recover the amount of the note; that subsequently the plaintiff approached the defendant and stated that it was its desire to withdraw said suit if it could “liven up” the paper, meaning thereby to have an apparently live asset in the bank in the shape of a note bearing two names, as required by the controller of the currency and the national bank examiners, instead of the note as it then stood; that the plaintiff further stated to deponent the time of payment was no object to plaintiff, and that it was willing to accept payment on account from Joseph and take his note for the balance, with the defendant's indorsement thereon. Then follows the averment as to the collateral promise the breach of which the appellee, William Kaufman, sets up as a defense to the present action, namely: “that if he, deponent, would indorse the said note, for said Joseph 'S. Kaufman, or become joint maker with him, plaintiff would agree to give said Joseph S. Kaufman all the time he would require or need to pay the said note; that plaintiff would continue to renew said note from time to time and as often as was necessary, to enable said Joseph S. Kaufman to discharge said debt by payments in such amounts as he could find it convenient to make; and that all said plaintiff desired was that said Joseph S. Kaufman would promptly renew the note, as it became due from time to time, and pay the interest for renewals thereof, and pay off on said note as much as he could, by partial payment on account until the said debt was paid and discharged in full.” This is followed by averments that, relying upon the promise and representation so made to him, in the absence of which the defendant would not have become indorser or jointly liable with Joseph upon any note to be given to the plaintiff on this account, and solely by reason thereof and on the strength of the plaintiff’s promise and representations, the deponent, on June 12, 1907, became accommodation maker jointly with Joseph on a note to the order of the plaintiff for $1,500, payable four months after date; that Joseph paid the balance of the $1,700 debt, the discount on the new note, and the costs of the then pending suit, which was then discontinued; that the note was renewed from time to time until the debt was reduced to $1,250, when the defendant became joint maker of the note in suit, “under the same terms and conditions as in the original note and in reliance upon the promises and representations of the plaintiff that said note would be renewed at maturity if said Joseph Kaufman would then make partial payment on account of the principal thereof and pay the discount for renewal.” The averment as to the defendant’s tender of performance and as to the plaintiff’s refusal to accept a renewal note when the note in suit fell due, is, substantially, that on September 23 or 24, 1908, the deponent and Joseph executed a note for $1,200, due in four months, which, with Joseph’s check for $74.00 was duly forwarded to the plaintiff in a letter informing the latter that the note was sent for the purpose of taking up the note to fall due on the twenty-fifth; that $50.00 of the amount of the check was to be applied on account of the principal, and $24.00 was intended as payment of the discount on the renewal note; that the plaintiff received the letter with the note and check, but, contrary to the directions thereof and in violation of its promises and representations to the deponent, refused to renew the note for the amount of $1,200 and applied the entire $74.00 upon the principal of the $1,250 note; and that since that time it has consistently and persistently refused to renew the note in accordance with the collateral agreement above recited. It is further averred that the $1,200 note was returned to Joseph on September 30, 1908, in a letter in which the plaintiff stated that it insisted on a payment that would reduce the loan to $1,000 on or before October 23, and that the bank had applied the $74.00 on the principal of the note for $1,250- — the note in suit.

The learned judge of the common pleas in his opinion overruling the motion for judgment cited the case of Gandy v. Weckerly, 220 Pa. 285, as authority for the proposition that where a person is induced by a contemporaneous promise to sign a promissory note, which he would not have signed except for such promise, the subsequent breach of the promise is a fraud on his right and he may set up the breach as a defense to the note, and prove the promise by parol evidence, and held that the rule as thus stated was applicable to the kind of promise set up in the affidavit of defense. This view is not controverted in the printed argument of appellant’s counsel, which, as well as their statement of the question involved, shows that they ask to have the judgment reversed on a different ground. We feel justified, therefore, in confining our consideration to the question presented in the appellant’s printed argument and his statement of the question involved, leaving other questions open for future consideration if occasion therefor shall arise. The grounds upon which they question-the correctness of the refusal of judgment are that it does not appear by the affidavit of defense that the appellant suffered any damage by reason of the failure to formally accept the note for $1,200 tendered to the appellant; that for every legal purpose and for every useful purpose to him the renewal note was accepted; that the bank committed itself to an extension by its acts; and that if there was any duty to tender performance after the expiration of four months from September 25, 1908, the duty rested on the defendants and not on the bank. We are unable to adopt this view. The $24.00 was not accepted as interest on the loan from September 25 to November 25, 1908, but was applied by the bank to the principal. Construing the averments of the affidavit of defense in connection with the plaintiff’s letter, the agreement was that the payment to be made at each renewal should be in such amount as Joseph could make, whereas the plaintiff took the position that a renewal would not be accepted except upon payment of the amount it dictated. In effect, taking the averments in the affidavit for verity, the action of the bank on September 30 was distinct and unequivocal notice to the appellee that it denied or at least would not be bound by the parol agreement set up in the affidavit, and, as the case is now presented, there is nothing to show that the bank receded from that position during the period that the renewal note tendered in September, 1908, was to run. Therefore, if the appellee was not in default at the beginning of that period he cannot be said to be in default because another renewal note was not tendered by him and the principal debtor at the expiration of that period.

This is all we deem it necessary to say at this time except to emphasize the fact that the case as now presented does not directly or indirectly involve the question of the release or extinguishment of the debt of Joseph Kaufman or of his liability on the note in suit.

The appeal is dismissed at the costs of the appellant without prejudice, however, to its right to trial by jury and a second appeal after final judgment.


author: Morrison, J.,

text:
    Blyler’s License.

      Liquor law — Revocation—Practice, Q. S. — Action of the court.

    Where a decree revoking a liquor license purports on its face to have • been made by the court of quarter sessions with the concurrence of the president judge and two associate judges, and the record as made up shows a hearing of testimony by the three judges and argument of counsel, and no objection is made at the time that the court was not properly sitting, it cannot be subsequently objected that the decree was the mere act of the judges in vacation, and not the act of the court of quarter sessions itself. Such a decree cannot be set aside by the two associate judges at a subsequent day on a hearing without testimony or petitions in favor of the respondent. Petitions by stranger to the record are not sufficient.
    Argued Oct. 26, 1910.
    Appeal, No. 177, Oct. T., 1910, by Interdenominational Temperance Committee, from decree of associate judges in Q. S. Huntingdon Co., Feb. Term, 1910, No. 19, setting aside decree revoking liquor license of Samuel E. Blyler.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Petition to set aside decree revoking a liquor license.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree setting aside decree revoking liquor license.

      James S. Woods, with him W. B. Simpson and W. M. Henderson, for appellant.
    Where it is established that the licensee has violated the liquor laws, the court must revoke the license. It has no discretion: Templeton’s License, 3 Pa. C. C. Rep. 434; Com. v. McCandless, 3 Pa. Dist. Rep. 30.
    A decision rendered on a rule to open a judgment, is res adjudicata. The defendant must present his whole case: Shaw v. Blakey, 4 Kulp, 191; Schenck’s App., 94 Pa. 37; Gordinier’s App., 89 Pa. 528.

      November 21, 1910:

      Thos. F. Bailey, with him Samuel /. Spyker, for appellee.
    The associate judges had the power to enter the decree: Branch’s License, 164 Pa. 427; Sperring’s License, 7 Pa. Superior Ct. 131; Free’s License, 33 Pa. Superior Ct. 348; Huntingdon County Line, 8 Pa. Superior Ct. 380.
   Opinion by

Morrison, J.,

The county of Huntington has two associate judges and they with the president judge constitute the court in that county. On March 7, 1910, a retail liquor license was granted to the appellee to sell vinous, spirituous, etc., liquors in the borough of Huntingdon, Huntingdon county, during the year beginning on April 1, 1910.

The learned counsel for the appellants and appellee so nearly agree upon the facts that we are relieved of considerable labor in considering and disposing of this appeal. There is, however, a marked disagreement between the counsel in respect of whether or not the rule to revoke the appellee’s license was granted by the court of quarter sessions, or, as contended by counsel for appellee, by President Judge Woods at his home in Lewistown. Appellant’s counsel contend that on April 14, 1910, a petition was presented to the court of quarter sessions of Huntingdon county, by the appellants, charging numerous violations of the liquor laws by the appellee, and that a rule was granted upon him to show cause why his license granted on March 7, 1910, should not be revoked. This rule was made returnable on May 2, 1910, to be heard before the court on May 9, 1910. On April'28, 1910, the appellee applied to the court for an order requiring the. petitioners to file a bill of particulars, but such decree was refused by the court under an arrangement to take the testimony on behalf of the petitioners at the time fixed in the rule, and allow the respondent two weeks time in which to prepare his defense and offer his testimony. This arrangement was complied with, and the testimony in behalf of the respondent was taken on May 23, 1910. The petitioners, with their counsel, and the appellee, with his counsel, appeared before the court, all of the judges being present, and after the examination of a large number of witnesses on behalf of the petitioners and respondent, and after argument by counsel, the three judges found that the respondent had violated the law, and on May 31, 1910, entered a decree revoking his license. This decree purports to have been made by the court with the concurrence of the three judges thereof.

Notwithstanding the contention of the counsel for the appellee that the granting of the rule and the hearing and the decree revoking the license were not the acts of the court of quarter sessions, we are disposed to assume, from the record as it appears, that the granting of the rule and the hearing and the decree were the acts of the court and not of the judges in vacation. From what is before us we cannot assume that the learned president judge of the court below would have permitted the record to be made up as of business transacted in open court if such was not the fact. The petition is addressed to the judges of the court of quarter sessions of Huntingdon county, and it is a conceded fact that all of the judges of that county sat and heard the testimony of a large number of witnesses and that the appellee and his counsel were present and were fully heard, and it appearing that the decree revoking the license was made and filed by the court and that no question was raised by the appellee or his counsel that the court of quarter sessions was not properly sitting, we cannot now assume the facts as contended for by appellee’s counsel. It thus appearing that the court of quarter sessions, with a full bench, revoked the license of the appellee by a decree filed on May 31, 1910, and that the court then rose, we are of the opinion that said decree completely revoked and ended the license theretofore granted to the appellee. This brings us to the question of the power of the two associate judges to meet at a later date, in the absence of the president judge, and revoke the decree of May 31, 1910, and restore the license to the appellee. On June 20, 1910, the two associate judges received and heard a petition, signed by a number of citizens, praying for a restoration of appellee’s license, and made a decree thereon directing a hearing to be held on June 25, 1910. On the latter date, in the absence of the president judge, the two associate judges met at the courthouse for the purpose of reconsidering the decree of the court made on May 31, 1910. On that day, without hearing any new evidence, the associate judges filed a decree revoking the decree of May 31, 1910, and restoring the license of March 7, 1910, to the appellee. The decree is as follows:

“Now, this 25th day of June, 1910, upon rehearing and reconsideration of the testimony taken in the matter of the rule to show cause why the license of Samuel E. Blyler should not be revoked, No. 19, Feb. Tr. 1910; and upon the further consideration of a large number of petitions signed by a large number of citizens of Huntingdon county, it is hereby ordered and decreed that the decree of May 31, 1910, be and is hereby revoked; and the license granted by this court to Samuel E. Blyler on the 7th day of March, 1910, is hereby restored to the said Samuel E. Blyler with the restrictions and requests made in said order and decree of May 31, 1910. Costs of this proceeding to be paid by Samuel E. Blyler.
“ By the Court.
“W. E. Lightner, A. J.
“H. Richardson, A. J.”

On July 15, 1910, President Judge Woods entered his dissent as follows:

“And now, July 15, 1910, the within decree having been brought to my notice, I hereby enter my dissent to said decree and on motion of the attorneys for the Interdenominational Temperance Committee an exception to the within order and decree is hereby granted and bill of exceptions sealed.
“J. M. Woods, P. J. [Seal.]”

The assignments of error raise the question of the power of the associate judges, not learned in the law, to make the decree of June 25, 1910. We call attention to the fact that the associate judges appear to have been influenced by a large number of petitions signed by a large number of citizens of Huntingdon county. This appears in their decree. It does not appear that the appellee ever petitioned the court for a rehearing. The action of the associate judges seems to have been brought about by a large number of persons signing petitions in regard to a case which had been disposed of by a final decree nearly a month before and with which they had no connection. If a solemn decree of a court, regularly entered, can be so brushed aside by associate judges, then decrees and judgments of courts of record will be of little value. It is contended by counsel for appellee that associate judges have the power to grant and refuse licenses. This is true, but that principle is beside the question we are considering. When the court of quarter sessions is duly convened for the consideration of licenses it is well settled that the associate judges can either grant or refuse a license disregarding the views of the president judge. But the question raised by this appeal is entirely different. It is contended that there is no exception in this record entitling the appellants to have it reviewed by this court. The view we take of it does not require an exception. The decree of May 31, 1910, made by the court of quarter sessions of Huntingdon county completely revoked and ended the appellee’s license. The court then rose and that decree became the absolute judgment of the court and the remedy of any person aggrieved thereby was, first, by a rehearing on a petition or motion presented at the same term, and, second, by an appeal. But neither one of these remedies was resorted to. In our opinion, if the president judge had met with the associates and had signed the decree of June 25, 1910, with them, it would still have been an illegal decree and insufficient to legally destroy the decree of May 31, 1910, and restore the revoked license to the appellee. Decrees and judgments of courts of record are binding and conclusive as to the subject-matter thereof where the court has obtained jurisdiction, and such decrees and judgments can only be set aside or reversed in the manner provided by law.

The decree of June 25, 1910, by the associate judges revoking the decree of May 31, 1910, is reversed, and the decree of May 31, 1910, revoking the license to appellee, granted March 7, 1910, is reinstated. Costs of this appeal to be paid by appellee.


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    Carey v. Seifert, Appellant.

      Mechanic’s lien — Implied contract — Breach of contract.

    1. A builder who is engaged to erect a small building not defined by any specific plan at a price to be determined by the amount of labor and material required, may file a mechanic’s lien for work done and material furnished. The mechanic’s lien act provided for implied contracts.

      Contract — Entire contract — Performance—Instructions.
    2. Where in an action on a mechanic’s lien the jury finds as a fact that the agreement between the parties did not amount to an entire contract for the completion of the work at a fixed price, the trial judge cannot be convicted of error in refusing to charge that if the plaintiff failed in the performance of his contract in any material matter he could recover nothing.
    Argued Oct. 19, 1910.
    Appeal, No. 131, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 3,978, on verdict for plaintiff in case of Edward Carey v. Thekla Seifert.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Ralston, J.
    The court charged in part as follows:
    One of the first questions that you will have to determine in this case is whether there was any contract between these parties. The plaintiff testified that the defendant, Mrs. Seifert, had asked him to put up a building for her, but that no price was agreed upon, no specifications prepared and that the whole matter was left to his discretion; that she described the kind of a building she wanted and that he proceeded to put it up for her. He also testified that after a certain amount of the work had been done the details of which he explained to you she told his carpenter that she did not want him to go on with the work. The carpenter was called to the witness stand and testified that Mrs. Seifert had put him off the work, told him not to go on with it and consequently the work stopped. Mr. Carey, the plaintiff, never having received his money brings this action to recover for what work he has done, which amounts to $171 — the interest of course will be calculated by counsel.
    Mrs. Seifert testified that she had a contract with the plaintiff to do this work for $150 — or she appears to have intended to so testify — although in my judgment the evidence was extremely vague to say the least of it. Indeed I think she said it would cost something over $150, but do not recall that she testified positively that she had a contract with Mr. Carey that he would do this work for $150 — the evidence on that subject being extremely vague.
    Her daughter is called and she testified to some conversation that she heard between Mr. Carey and her mother — Mr. Carey stating that he would do the work for $150.
    [If you should find from that testimony that Mr. Carey did undertake to do the work for $150 and Mrs. Seifert was obliged to expend $113 to complete Mr. Carey’s work, then Mr. Carey should only recover for the difference.] [2] If he agreed to do that work for $150, Mrs. Seifert was entitled to a complete house for $150, and if he refused to go on with the work and she has to expend $113 to finish it, he could only recover the difference.

      November 21, 1910:
    Defendant presented these points:
    1. It was the duty of the plaintiff after he received the notice of August 20, 1906, to complete the building or proceed to remove materials, if by so doing he could lessen the damage done him. Answer: Refused. [1]
    2. If the jury find that the plaintiff failed in the performance of his contract in any material matters, and if that failure was not due to any breach on the part of the owner of her contract, the verdict should be for the defendant. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $174.75. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      J. Lawrence Wetherill, for appellant.
    There can be no recovery on a quantum meruit in an action brought under the mechanic’s lien act of 1901: Tenth Nat. Bank v. Construction Co., 218 Pa. 581; McVey v. Kaufman, 223 Pa. 125; Harlan v. Rand, 27 Pa. 511; Tebay v. Kirkpatrick. 146 Pa. 120; Knelly v. Horwath, 208 Pa. 487; Warren v. Johnston, 33 Pa. Superior Ct. 617; Deichley’s Est., 35 Pa. Superior Ct. 442; Hart v. R. R. Co., 41 Pa. Superior Ct. 224; Keely v. Jones, 35 Pa. Superior Ct. 642; Yaukey v. Buckman, 18 Pa. Superior Ct. 378.
    The contractor cannot recover if he has failed to perform his contract in material matters, if the failure was not due to any breach by the owner: Hartman v. Meighan, 171 Pa. 46; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Caughey v. Parker, 26 Pa. Superior Ct. 289; Weiskircher, v. Volk, 29 Pa. Superior Ct. 611; Snedaker v. Torpey, 41 Pa. Superior Ct. 312.

      J. Harry Wagner, for appellee.
   Opinion by

Henderson, J.,

The first proposition presented by the appellant is that the plaintiff cannot recover because it does not appear from the evidence presented by the latter at the trial that a contract existed between the plaintiff and defendant under which the labor was performed and the material furnished for which the lien was filed and that on such a state of facts a right of lien does not exist under the Act of June 4,1901, P. L. 431. This position is taken in view of the testimony of the plaintiff who, to an inquiry by the court whether he had any agreement or contract for the building of the house, answered that there was no agreement at all. An examination of other parts of his testimony makes it apparent, however, that the witness had reference to an agreement in writing or an express agreement for the construction of the building. After testifying that he did not have “a drawing for this building” but that the defendant allowed him to use his own judgment with reference to the plan he testified that all the instruction given him by the defendant was to go ahead with the building and that she wanted to build it as cheaply as possible. It also appears from the testimony of the defendant herself that material was furnished and work done in the erection of the building by the plaintiff and there can be no doubt that an implied contract existed which would furnish the basis for a lien, if the plaintiff’s evidence is to be credited. The first section of the act of 1901 provides that "the word 'contractor’ means one who, by contract or agreement, express or implied, with the owner or the one who acts for the owner, plans or superintends the structure or other improvement, or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, reasonably necessary for and actually used therein.” It will be seen that implied contracts are provided for and the case presented by the plaintiff is one of that kind. As his evidence develops the case he was engaged to erect a small building not defined by any specific plan at a price to be determined by the amount of labor and material required. As work was done and material furnished and both accepted by the defendant there is ample evidence to support the claim on the theory of an implied contract. If the service was rendered as the plaintiff alleges it was, without any agreement as to price or amount, a promise to pay is presumed in law and this will support the lien.

The second position taken is that the plaintiff agreed to construct a building for the defendant of dimensions and character agreed on for the sum of $150; that the plaintiff willfully and without cause neglected to complete the structure by reason of which the defendant was compelled to expend $113 to finish it, the legal consequence of which conduct on the part of the plaintiff was to deprive him of any compensation for his labor and material. The court submitted to the jury the question whether there was a contract between the parties for the completion of the work for $150 as claimed by the defendant. This was done with hesitation on the part of the court because of the lack of evidence to support the defendant’s position. After a careful examination of the testimony we think this instruction was more favorable to the defendant than the testimony warranted for the defendant herself in her examination in chief testified that “he (the plaintiff) told me that it would not cost me over $150 for the work what he is going to do” and on cross-examination in answer to this question, “You concluded to build a brick building— what did you tell Mr. Carey to do?” the defendant answered: “He said he would put the building up to suit for a shoemaker shop and I asked him how much it would cost me and he said it would not cost me over $150 or it might cost me over $150.” In another part of her cross-examination she said that the plaintiff promised to do the work for $150. The defendant’s daughter, called on behalf of her mother, testified, “I heard him tell mamma it would not cost over $150.” It will thus be seen that there was little to support the defendant in her claim that there was an express agreement for the performance of the work for the price named. The jury, however, found against the defendant on the question of an express contract and she was therefore not prejudiced by the instruction complained of in the third assignment of error. The part of the charge quoted in the assignment is not in strict accord with the doctrine of Hartman v. Meighan, 171 Pa. 46; Snedaker v. Torpey,, 41 Pa. Superior Ct. 312, and other cases on the subject of the substantial performance of entire contracts, for if the contract had been entire and the defendant had willfully and deliberately refused to complete the work in a material part he would not have been entitled to recover anything. But as the arrangement between the parties did not amount to an entire contract for the completion of the work at a fixed price as is shown by the verdict of the jury the defendant was not prejudiced in that part of the charge and this applies as well to the refusal of the court to affirm the defendant’s point set forth in the second assignment of error. If the finding had been that there was an entire contract and the defendant had been called upon by the verdict of the jury to pay the difference between the plaintiff’s bill and the $113 which she alleged she had paid out to complete the work the assignment of error would have raised a question important to the defendant but when the subject of the perfoi’mance of an entire contract is put entirely out of the case by the verdict of the jury the answer to the point could do no injury. We find no substantial reason for reversing the judgment of the court below.

The judgment is therefore affirmed.


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    Rumovicz, Appellant, v. Scranton Electric Company.

      Negligence — Electric light company — Contact with wire — Trespass— Judgment n. o. v.

    No recovery can be had against .an electric light company for injuries to a boy eleven years old resulting from contact with an electric wire, where it appears that the defendant maintained a building on an uninclosed lot between fifteen and twenty-five feet from a road; that in the building near the road a wire ran along the wall just inside a window, the sill of which was two feet from the ground; that some time prior to the accident the glass had been broken by boys throwing stones; that the defendant had done nothing to permit or invite anyone to enter the building; and that the injury to the plaintiff could have been caused in no other way than by the plaintiff thrusting his hand through the broken glass and touching the wire which caused his injury.
    Argued March 9, 1910.
    Appeal, No. 33, March T., 1910, by plaintiffs, from judgment of C. P. Lackawanna County, Nov. T., 1907, No. 185, for defendant non obstante veredicto in case of Stanley Rumovicz and Edward Rumovicz by his father and next friend, Stanley Rumovicz, v. Scranton Electric Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy eleven years old.
    At the trial the jury returned a verdict for the plaintiff Stanley Rumovicz, for $100 and for Edward Rumovicz for $1,000.
    On a rule for judgment for defendant non obstante veredicto Newcomb, J., filed the following opinion:
    There was a verdict for plaintiffs in an action by father and son for injuries to the son occasioned by his coming in contact with an uninsulated wire on defendant’s premises. At the close of plaintiffs’ case defendant asked for binding instructions. The present motion is founded on the refusal of that request. The facts are free from complication.
    As a part of its light and power plant in the village of Dickson City the defendant had on its premises a brick building used as a storage house. It stood twenty or thirty feet from the street. The lot not being inclosed the intervening area was from time to time resorted to by boys at play. Inside the building electric wires were strung. Their purpose was not disclosed at the trial. Therefore they were presumably there for some use in the conduct of the company’s business. At the end nearest the street the wires ran along the wall just inside a window of which the sill was upwards of two feet from the ground. To some extent the glass, consisting of small panes, had been broken, apparently by boys throwing stones. It had been in that condition for some weeks, if not months, before the accident. While the boys had been accustomed to play on the ground, none had been known to meddle with the building itself, otherwise than by throwing stones. In July, 1907, Edward Rumovicz, then eleven years old, was passing there with two other boys, all of whom lived in the neighborhood. Out of curiosity they turned aside to look in through the window. Apparently they put their hands on the sill. In some way, which neither could explain, Rumovicz received an electric shock, thereby sustaining a severe injury. It was taken for granted at the trial, and will be assumed now, that either consciously or unconsciously, he put his hand through the broken window far enough to touch one of the wires.
    Subject to the general question reserved, the case was submitted on the allegation of negligence set out in the statement. True, it was also alleged that the wires had been intentionally charged by defendant for the specific purpose of inflicting an injury under the circumstances of this accident. That, however, was wholly unsupported, and the question left to the jury was whether the defendant was guilty of negligence in failing to keep the glass, or some other barrier, in place in view of the proximity of the wires to the street and the known habit of the children to play and idle about the premises.
    The question now is whether the case was for the jury at all.
    Had the defendant strung and charged the wires in the open lot after knowledge brought home to it that persons, whether children or adults, were accustomed to resort there, a different question would be presented. The same would be true if, seeing the boys at the window with their hands on the sill, an employee of the company had charged the wires without warning them. But there was nothing of that kind. No servant of the company was about. Apparently the wires were in their usual condition as required in the company’s operations. Hence the liability, if any, must arise solely from what has been called the principle of “attractive nuisances.” That doctrine, however, so far as I can find, has in no jurisdiction been extended to injuries to a trespasser arising from machinery within private buildings to which the intruder gets access through a window without the permission, and in the absence of the owner or those representing him. If it were so every proprietor of a mill or factory would operate it subject to the duty of active vigilance in keeping trespassers out. That is not the law.
    On review of the case I cannot distinguish it in principle from Thompson v. R. R. Co., 218 Pa. 444. There children were accustomed to resort to the railroad yard. That was inclosed by a high board fence, broken in places and having gates usually open. In the yard was a turntable. When not in use, instead of being kept locked, it was fastened only by a brake which anyone could open. A boy of about eight years entered the yard at night through the open gateway. He stood near the table as it was being turned by other boys at play. A projecting bar struck him whereby he was thrown into the pit and seriously hurt.
    In reversing judgment on a verdict for the boy the course of decision on the present subject in our own and other jurisdictions was extensively reviewed by the Supreme Court. In effect the doctrine of the so-called “turntable cases” as it had been generally understood was repudiated. The proposition that the owner of private property may incur liability to a trespasser for an injury induced by mere childish curiosity or heedlessness, unconnected with any negligence in the use of his property, was rejected as unsound in legal theory and unsupported by the weight of authority. It was held that the fact that the person injured was a child makes no difference in the absence of negligence, and.that as regards an adult the facts in that instance showed no breach of duty. It was said: “He was where he had no right to be, on the property of the defendant, which it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally, but it was under no duty to take care of him either by keeping him out of the yard or by protecting him after he entered it from his pwn acts or the acts of others who, like him, had entered without permission.” This must be regarded as the settled rule in this state.
    But it is contended by the learned counsel that the question here is ruled otherwise by Henderson v. Refining Co., 219 Pa. 384, and Walsh v. Pittsburg Rys. Co., 221 Pa. 463. In my judgment both are clearly distinguishable from the present case. In the Henderson case a permissive way across a vacant lot had become established. It formed a well-marked line of communication between two dwelling houses on opposite sides of the lot. It led from the side door of one to a gate opening out from the other. All three parcels belonged to defendant. The houses were occupied by its tenants. A boy had occasion to go to one of the houses. When he left he went out by the exit opening on the path. He was hurt by being caught in some way in the machinery of a pumping plant then recently set up by defendant either on or at the edge of the • path. It must be noted that the path had acquired its status with the implied consent of the defendant before the machinery was placed there. The Supreme Court, therefore, held that the boy was not a mere trespasser. The path had become an appurtenance to the houses as part of the curtilage. In other words, the boy was using the path under defendant’s quasi license. The machinery formed a menace to the safety of those lawfully exercising an ostensible right which had attached to the premises. There was nothing in the mere location of the machinery which would operate to extinguish the apparent right of way of those having lawful occasion to go in or out by that entrance. The case in no way weakens or narrows the general rule that the landowner owes no duty of protection to those who may intrude on his premises. On the contrary, it was distinctly held that the facts took it out of the scope of that rule.
    In Walsh v. Pittsburg Rys. Co. the defendant had a power house for the operation of a cable on an uninclosed lot adjacent to the street. Children resorted to the lot as a playground. On the occasion in question a girl of eight years was attracted there by a fight in which some boys were engaged. The machinery was then idle and the man in charge absent. She stood within two feet, or less, from the door of the motor house, and in dangerous proximity to the cable if in motion. Defendant’s employee returned, facing her as he came and almost brushing against her as he entered the door. Without warning her he immediately put the machinery in operation. The frayed and broken strands of the cable caught the girl’s clothing and being drawn into the machinery she was injured. It is apparent that the circumstances might well charge the defendant’s employee with knowledge of her peril, and make his act in starting the machinery one of wanton recklessness. And it was so held. While the rule stated in Thompson v. R. R. Co. was again reaffirmed and it was again said that “the standard of duty in such case is the same whether the person injured be an adult or child,” it was further said: “There was, however, a duty not to in- . jure her intentionally, or wantonly by any act to expose her to danger. If the man who started the motor knew at that time that the plaintiff was standing between the rails close to the frayed cable, which would touch her dress when in motion, and from his knowledge of the circumstances was conscious that she would be exposed to danger if the machinery was put in motion, a duty of care arose, as it would in case of an engineer who sees a child on the track in front of his engine.”
    As between these cases and the one at bar I can see no analogy. On the contrary, the present case is to my mind clearly within the general rule of immunity as regards an injury to a trespasser where the landowner is making a lawful and proper use of his property.
    December 12, 1910:
    For that reason the defendant was entitled to binding instructions. The rule to show cause is made absolute and judgment is now directed to be entered for defendant on the point reserved sec. leg.
    Plaintiff appealed.

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

      I. H. Burns, with him II. D. Carey and Joseph O’Brien, for appellants.
    This case is ruled by Whaley v. Nat. Bank, 28 Pa. Superior Ct. 531; Gillis v. R. R. Co., 59 Pa. 129; Henderson v. Refining Co., 219 Pa. 384; Walsh v. Rys. Co., 221 Pa. 463; Millum v. Coal Co., 225 Pa. 214.

      Everett Warren, with him E. N. Willard, Clarence Balentine and William M. Curry, for appellee,
    cited: Wetherby v. Gas & Electric Co., 75 Atl. Repr. 8; Sullivan v. R. R. Co., 156 Mass. 378; Mayfield Water & Light Co. v. Webb, 33 Ky. L. R. 909; Keefe v. Lighting Co., 21 R. I. 575.
   Opinion by

Porter, J.,

The opinion filed by the learned judge of the court below, which will appear in the report of this case, fully vindicates his action in entering judgment in favor of the defendant non obstante veredicto. The evidence disclosed that the wire which was averred to have caused the injury of plaintiff was inside one of the buildings of the plant of the electric light company, and that some time prior to the occurrence one or more of the panes of glass in a window of the building had been broken by boys throwing stones. This window was in the end of the building which stood back on the private property of the defendant between fifteen and twenty-five feet from the side of a road which led from the village out into the country. The evidence failed to clearly disclose just how the plaintiff was injured, but if it was caused by the wire, the maintenance of which was the only act of negligence averred in the statement of plaintiff, it could only have been caused by the plaintiff having, while standing outside the building, passed his hand through the opening where the pane of glass had been broken and touched the wire. There was no evidence from which a jury should have been permitted to infer that the wire had been placed in position and maintained by the defendant for the purpose of injuring anyone or for any other unlawful purpose, and as the burden was upon the plaintiff that element is eliminated from the consideration of the case. There was no evidence that any person, whether child or adult, not an employee of the defendant company had ever been permitted or invited to enter the building. The wire was entirely within the brick building used by the defendant and, in the absence of evidence to the contrary, it must be assumed to have been used there for a lawful purpose. The learned judge of the court below held, we are convinced correctly, that the case was ruled by Thompson v. B. & O. Railroad Co., 218 Pa. 444, and clearly drew the distinction between that case and Henderson v. Refining Co., 219 Pa. 384, and Walsh v. Railways Co., 221 Pa. 463. Counsel for appellant have argued in their brief that the decision in Thompson v. B. & O. Railroad Co., 218 Pa. 444, has been qualified by the Supreme Court in Milium v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214, which was decided after the judge of the court below had filed his opinion in the present case. There is nothing in the opinion in Millum v. Coal Co., nor in the facts upon which it is based to sustain the contention of counsel. The ground upon which the decision in Thompson v. The Railroad Co. was decided was that the plaintiff in that case was a trespasser upon the property of the defendant and the latter owed him no positive duty of protection. The position in which the evidence placed the plaintiff and the obligation which that position imposed upon the defendant were thus stated in the opinion by Mr. Justice Fell: “He (the plaintiff) was where he had no right to be, on the property of the defendant, which it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally but it was under no duty actively to take care of him either by keeping him out of the yard or by protecting him after he had entered it from his own acts or the acts of others who, like him, had entered without permission. There was no negligence unless there was a breach of duty. There was no breach of a duty to an adult. An owner of land is not hable for its condition to an adult who enters without permission. Unless a different standard of duty is to be established as to a child, there was no liability in this case.” There is nothing to be found in the opinion in Millum v. Coal Co. which can properly be taken as qualifying or limiting the principle above declared to be applicable, when one who is injured is a mere trespasser upon the property of another. The decision in Millum v. Coal Co. was put upon the ground that, “Where the owner of property invites or permits its use by the public, as a common, or for a playground, or a picnic ground, it is certainly the duty of the owner to use reasonable precautions to protect the public from the operation of dangerous machinery located thereon. Under such circumstances, a different duty is imposed upon the owner, from that required of him towards those who are merely trespassers upon his property.” In that case the defendants were operating machinery, which might be dangerous, in an open unfenced field, to which all persons had access and which was used for purposes of a playground and at times as a picnic ground. The plaintiff was a child of tender years and it was held that he was not a trespasser. The opinion quotes with approval the language of Mr. Justice Agnew, in Kay v. Pennsylvania Railroad Co., 65 Pa. 269: “The case is altered, when by a license to others, they have devoted this ownership to a use involving their interest and their safety; and by sufferance permitted the public to enjoy a privilege of passage which might bring their persons into danger.” The act of the plaintiff in the present case in putting his hand through the opening in a broken pane of glass was the uninvited intrusion of a trespasser, which this defendant could not reasonably be required to anticipate and guard against, as is clearly ruled by Thompson v. B. & O. Railroad Co., 218 Pa. 444.

The argument of counsel for the appellant is in part based upon certain facts which we do not consider to have been established by evidence, one of which is the assertion that the building in question was used as a storage house, or junk shop and that there was no necessity for the maintenance therein by the defendant of wires charged with an electric current. The evidence wholly failed to establish these facts. The plaintiff did not see fit to call any witness who had ever been inside the building or knew anything about the purposes for which the wires therein were maintained. There was no specific evidence as to the uses to which the building was devoted, and the witnesses who were called had merely directed their attention to the window and the location of the wire with respect thereto. There was, as we have already said, nothing in the evidence which could warrant the suggestion that the wires were not maintained for a lawful purpose. The paper-book contains this assertion: “In the Milium case there seems to have been nothing particularly designed to attract the attention of children: in this case there was a donkey in a pen close to the window where the accident occurred.” This attempt to show that the defendant was maintaining “an attractive nuisance,” upon the premises, which might be dangerous to children, has for its only foundation the fact that a mule was sometimes kept in a small building or shed twenty-five feet away from the window in question and in a separate building. The “attractive nuisance” was not in the building through the window of which the plaintiff thrust his hand.

The judgment is affirmed.


author: Beaver, J.,

text:
    Ransom v. Crawford, Appellant.
    December 12, 1910:

      Payment — Evidence—Conflicting testimony — Question for jury.

    In an action by a sister against a brother to collect a sum alleged to have been wrongfully retained by the defendant in settling with the plaintiff for her share of her father’s estate, where there is evidence that at the time of the settlement the defendant deducted the amount of a note of the plaintiff’s husband to himself with interest thereon, that he added the words “with interest” in the body of the note, telling plaintiff that she could keep it as it was of no value, and that she might tear it .up, and the plaintiff denies that she consented to the deduction, and the evidence is otherwise conflicting, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.
    Argued April 27, 1910.
    Appeal, No. 158, April T., 1910, by defendant, from judgment of C. P. Allegheny County, June T., 1906, No. 533, on verdict for plaintiff in case of Laura I. Ransom v. Harris Crawford.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for a balance alleged to be due by defendant as an agent. Before Ford, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $590.75. Defendant appealed.

      Errors assigned were various instructions, quoting them.

      H. V. Blaxter, of Lazear & Blaxter, for appellant.

      H. Fred Mercer, with him L. W. Mendenhall, for appellee.
   Opinion by

Beaver, J.,

The defendant, as the agent of his father’s estate, made settlement with his sister, the plaintiff, for her share therein. According to a statement which was in evidence, furnished by the brother to the sister, her share was shown to be $4,262.31. He came to the sister’s house, as shown by his own testimony, and that of another sister, with a check for the amount shown in the statement to be due the plaintiff, and a receipt for the same in full. The alleged settlement was made in the presence of the sister of both the parties. The defendant produced the check for the full amount and the receipt which it is alleged by the plaintiff she signed before the check was given her. After the receipt was produced, the defendant mentioned a note of the plaintiff’.s husband, which he alleged had not been paid to him and that, although barred by the statute of limitations, he thought the plaintiff should pay. According to the testimony of the sister, the plaintiff replied that she knew nothing about the note and did not think she ought to pay it. According to the defendant’s testimony, she said nothing. He deducted the note and, after adding in pencil below it the words “with interest,” added interest thereto and deducted the amount of the note and interest from the share of the sister, as shown by the receipt. He then drew a new check for the balance thus shown and handed this check and the note to the plaintiff and withdrew from the room where they were transacting business. According to the testimony of the sister, the plaintiff did not read the receipt until her brother, the defendant, had gone. The plaintiff did not return the note to the defendant and did not make demand for the balance alleged to be due her in the settlement of her father’s estate, until shortly prior to the bringing of this suit, although.there was evidence that a demand had been previously made on the defendant by the plaintiff’s sister in her behalf.

The main facts of the case are not in any way disputed; that is, that the real share of the plaintiff in her father’s estate was, as alleged, $4,262.31; that the amount of the check given the plaintiff by the defendant was $3,869.81, which, with the note of John G. Ransom, the plaintiff’s husband, and interest thereon for eleven years and a half month, amounting to $392.50, made up the amount due the plaintiff.

Did the plaintiff agree to this settlement and accept the note of her husband, and the interest thereon, as part payment of her share of her father’s estate? If she did, she was, of course, bound by it. If she did not, as a matter of fact, the defendant was indebted to her the amount of the note of her husband and interest thereon deducted from her share. This was the simple question, and it was purely one of fact. Although the main facts are admitted, there is some discrepancy as to what occurred at the time of the settlement; the plaintiff and her sister differing materially in their statements of what occurred from that of the defendant.

The statement of the facts, briefly made herein, is we think the sufficient answer to the first and second assignments of error, the first being that "Under the pleadings and evidence in this case, the verdict must be for the defendant,” and the second that "The court erred in its refusal of defendant’s motion for judgment non obstante veredicto.” The court could not say, as a matter of law, that the settlement alleged to have been made by the defendant with his sister, the plaintiff, was one to which the plaintiff gave her assent. For the same reason, we think the answers of the court to the defendant’s second and third points, as assigned for error in the third and fourth assignments, were also correct.

The defendant asked the court to say that certain alleged facts, if believed by the jury, would be conclusive against the plaintiff, and that the verdict must be for the defendant. The court qualified these points by saying that the facts, as alleged, were to be considered by the jury "in determining whether she (the plaintiff) consented to this settlement, as claimed to have been made on May 27th, 1901.” In this we think the trial judge was entirely correct.- Both points related to the retention of the note of her husband by the plaintiff, and the defendant desired the court to say that that was conclusive upon the plaintiff. But there was evidence that the defendant had said at the alleged settlement that the plaintiff could retain the note, because it was of no value, and that she might tear it up. The plaintiff alleges that the note was not only barred by the statute of limitations at the time, but that it was rendered absolutely void by the defendant adding the words “with interest” at the bottom of the note and calculating interest upon it in accordance with this alteration, which rendered the note void. In any event, under the evidence, the manner in which the note was left in the hands of the plaintiff, and the effect which that had upon her rights, was a question for the jury, and was to be considered in determining whether or not the plaintiff consented to the settlement, as made by the defendant.

The fifth assignment of error is: “The learned court erred in commenting to the jury upon, and permitting their consideration of, a statement, being exhibit No. 4, which was not in evidence, the said portion of the charge and the rulings on the exhibit being as follows: ” It then clearly appears by what is set out by the defendant in the assignment that the exhibit No. 4 was offered and was admitted in evidence but was accompanied by the statement of the plaintiff’s counsel: “I withdraw from the case entirely anything based on the idea of fraud, and rest the case entirely on the question of want of consent.” The statement referred to was an itemized statement of indebtedness by the husband of the plaintiff to the defendant, containing, as the principal item in it, note dated November 13, 1900, $178.41. This account was paid by the plaintiff to the defendant prior to this alleged settlement. As the record stood, the offer was made and the evidence accepted, but was withdrawn by the plaintiff for the purpose of showing fraud on the part of the defendant, but as being evidence of the lack of consent on the part of the plaintiff to the settlement alleged by the defendant. The objection, when this withdrawal was made, was not insisted upon, and no exception was allowed. The comments of the court upon this statement, under the circumstances, were simply explanatory of the transaction, and were evidently intended to assist the jury in reaching the conclusion as to what the real condition of affairs was at the time of the alleged settlement between the plaintiff and the defendant, and were entirely proper.

The issue was clearly presented in the charge to the jury as follows: "In other words, gentlemen, as counsel have frankly said to you, the question for you to determine is: Did the plaintiff consent to this settlement at this conference held on May 27, 1901? If she consented to the settlement, and received the check, received the note, had the check cashed, and remained silent for a number of years afterward, then she cannot now be heard to repudiate that settlement, and is bound by it.”

That question was fairly left to the jury and, with the exceptions hereinbefore referred to in the several assignments of error, the charge of the court is not complained of. We think it was full, fair, unbiased and left the question entirely to the jury, whose conclusion was satisfactory to the court below, and is to be accepted by us.

Judgment affirmed.