author: Rice, P. J.,

text:
    Philadelphia, Appellant, v. Sciple.

      Municipal liens — Scire facias — Philadelphia county — Act of July 26, 1897, P. L. 420.
    A municipal claim filed by the city of Philadelphia for the cost of removing a nuisance from a, lot, loses its lien if a scire facias is not issued and prosecuted to judgment within five years from the date of filing the claim.
    The Act of July 26, 1897, P. L. 420, does not apply to a municipal claim filed by the city of Philadelphia for the cost of removing a nuisance from private property. The act is to be strictly construed as applying only to the particular class of claims specifically described therein.
    Argued Oct. 5, 1904.
    Reargued Oct. 3, 1905.

    Appeal, No. 259, Oct. T., 1904, by plaintiff, from order of C. P. No. 2, Philadelphia Co., March T., 1892, No. 5, M. L. D., making absolute rule to quash a writ of scire facias in case of City of Philadelphia v. Henry M. Sciple, owner or reputed owner, and Samuel Wilson, registered owner.
    Before Rice, P. J., Oready, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to quash scire facias.

      Wilt bank, ,T., filed the following opinion:
    This is a claim filed against a lot of ground therein described for the cost of the removal of a nuisance. It was filed April 8, 1892. On April 8, 1897, a sci.- fa. issued, and was returned made known as to Thomas H. Gessner, actual and present owner, and nihil habet as to Henry M. Sciple and Samuel Wilson, registered owners. On April 30, 1897, an affidavit of defense was filed by Thomas H. Gessner, which set forth that the claim was not filed within six months from the time of the completion of the work, and that the writ was not issued and served according to the statutes. The cause then rested, apparently in course for trial. On January 14, 1902, a sci. fa. issued to show cause why “ the said claim should not be revived for the term of five years.” This was served by posting and advertising, as appears by the return of the sheriff. On April 24, 1903, the defendants Sciple, Wilson and Gessner appeared by counsel and the2-eupon p2'ocured a rule 021 the plahitiff to show cause why the scire facias second above noted, to wit: of Janua:'y 14, 1902, should not be quashed.
    The dates sliowri by the record suggest the question whether the clahn is affected by the Act of July 26, 1897, P. L. 420. If it is not p2,eserved by that act it falls, because not prosecuted to judg2nent within five years of the issue of the fii'st sci. fa. thereon, as requi2’ed by the Act of Ap2'il 16, 1840, P. L. 410. The plaintiff contends that the second sci. fa. is necessa2-y to preserve it.
    The act of July 26,1897, provides that “ all municipal claims, where the same are the final assessments made upon the property or properties to pay the costs, expenses or damages, or either of them, of any municipal improvements in any city, borough, township or other municipal division of the state, which have been heretofore, or which shall hereafter be filed in the office of the prothonotary of any court of common pleas of the proper county as lie2is ” .... (if made according to the pi-ovisions of the law) .... “shall be and continue to be and remain liens on the respective properties until fully paid and satisfied ”....“ provided that a writ of scire facias shall be issued to revive and continue the said lien within the period of every five years after the lien is filed according to the practice in municipal claims; but failure to prosecute any scire facias to judgment within the five years from the issue thereof shall not invalidate or destroy the said lien.”
    It was conceded that the removal of a nuisance was within the class of improvements provided for.
    It was contended that the act applies to the case at bar, and that, under it, an alias scire facias may, and indeed must go out within each period of five years of the running of the claim unpaid', notwithstanding that the defendant has put his defense on record under the first writ and it remains with the plaintiff to advance to trial and judgment. The practical result contended for is that although an affidavit of defense in response to the demand of the first sci. fa. has been duly filed, and the plaintiff has thus been put in a position to require a plea and proceed to a trial if necessary, he may yet institute another action and necessitate another affidavit, and again do the same thing at recurring intervals of five years until the charge is finally adjudicated. We do not regard this construction of the statute as correct. It was not intended that suits should be multiplied and the defendant vexed by cumulative litigation. The costs alone would be heavy. One issue is adequate to determine the right, and this the plaintiff has at hand under his first scire facias. To argue otherwise is to set up that two or more issues, in two or more writs upon the same lien, are necessary, or at least according to statutory prescription; and if this is so, it may be asked, the determination of which issue is to prevail ? And if a judgment is had in one, may it be pleaded in another? Or may the pendency of the other writs upon which a defense is entered be pleaded in abatement of One at bar ? The act was not framed to countenance these niceties, and it embodies by reference the established “ practice in municipal claims.” As there is under it no limitation of time in the procedure on the claim filed, so that, if it applies, the second writ has not been necessary to preserve a lien which would otherwise fail, we must hold the plaintiff to the pending action on the original.
    It appears clear that the intention of the act was to save a plaintiff, duly pursuing his claim, from the effect of mere lapse of time, which under the earlier legislation often worked an injury independently of the merits of a given case. An arbitrary limit to the right to recover in a just cause had been found prolific of injustice. Delays of which a claimant was not the author and which he could not avert or remedy brought him towards the time for the extinguishment of his right of action which the court, however meritorious his motion and consonant with our established principles of equity, had no power to extend: Philadelphia v. Carr, 21 W. N. C. 444; South Easton v. Norton, 2 North, 130; Philadelphia v. Hanbest, 15 W. N. C. 349; Norton v. Dietrich, 1 North, 129; Philadelphia v. Scott, 93 Pa. 25; Meason’s Est., 4 Watts, 341.
    We have reached our conclusion without determining the application of the act of 1897 to the case at bar. For the present it is sufficient to rule that if it applies, it applies with respect to the preservation of the lien after the five years. Whether or not it does apply so as to preserve the lien may, if necessary, be ascertained in this case as our ruling leaves it. On the issues raised under the original writ the plaintiff can vindicate his right as fully as if we permitted him to proceed on his second scire facias, a course for which we have no way-rant where there has been raised a proper and unadjudicated issue on the first. Rule absolute.

      Error assigned was the order of the court.

      James Aleorn and John M. Patterson, assistant city solicitors, with them John L. Kinsey, city solicitor, for appellant.
    No appearance nor paper-book for appellee.
    May 14, 1906 :

       The opinion ordering reargument was as follows:
      Per Curiam, May 16, 1905:
      The application of the Act of July 26,1897, P. L. 420 to the city of Philadelphia and to the class of claims therein described, which, though filed prior to the date of its approval, were liens at that date, was considered in Philadelphia v. Hey, 20 Pa. Superior Ct. 480. Whether the claim involved in this case belongs to that class is another question, not discussed and not necessarily decided in that case. Without intending to limit the scope of the reargument we call attention to that question.
      Now May 16, 1905, a reargument is ordered.

   Opinion.by

Rice, P. J.,

On April 8, 1892, the city filed a claim for the cost of removing a nuisance, consisting of stagnant water, from a lot duly described in the claim, and on April 8, 1897, issued a sci. fa., which was returned made known to Thomas H. Gessner, the actual and present owner, and nihil habet as to Henry M. Sciple, the reputed owner, and Samuel Wilson, the registered owner, named in the claim. On April 30, 1897, Gessner filed an affidavit of defense. There the case rested without any attempt on the part of the city or the defendant to have it put at issue and brought to trial, until January 14, 1902, when a sci. fa. was issued to show 'cause why the claim should not be revived for the terra of five years, and why the sum claimed should not be levied of the' premises, etc. This writ was returned, made known by posting and advertising, and nihil habet as to Gessner, Sciple and Wilson. In January, 1903, they appeared by counsel and obtained a rule to show cause why the second sci. fa. should not be quashed. This appeal is from the order making absolute that rule.

The counsel for the plaintiff rely solely upon the Act of July, 26, 1897, P. L. 420, as authority for issuing the second writ, and contend that it was necessary to issue it in order to preserve the lien. The application of the act to the city of Philadelphia and to the class of claims therein described, which, though filed prior to the date of its approval, were liens at that date, must be conceded, in view of our decision in Philadelphia v. Hey, 20 Pa. Superior Ct. 480. Whether the claim under consideration belongs to that class is another question, not decided in that case, which we shall consider later. The learned judge below, without expressing an opinion as to the application of the act, held, that, if it does apply, the issuing and serving of the first writ and the filing of an affidavit of defense thereto were effective to preserve the lien indefinitely, and therefore there was neither occasion nor authority for issuing the second writ. Speaking of the act he said : “ As there is under it no limitation of time in the procedure on the claim filed, so that, if it applies, the second writ has not been necessary to preserve a lien which would otherwise fail, we must hold the plaintiff to the pending action on the original.” It is true the act declares that the claim duly filed shall continue to be and remain a lien “ until fully paid and satisfied ; ” but this is upon the condition thus stated in the second proviso : “ That a writ of scire facias shall be issued to revive and continue the said lien within the period of every five years after the lien is filed according to the practice in municipal claims.” If the legislature had stopped here, it might be argued with a degree of plausibility that what was meant by the words “ according to the practice in municipal claims ” was that the sci. fa. must be prosecuted to judgment within five years. We do not say that this would have been the proper construction; but the legislature, in order to prevent doubt upon the subject, added the words “ but failure to prosecute any scire facias to judgment within the five years from the issue thereof shall not invalidate or destroy the said lien.” To hold that the lien is preserved indefinitely by the issueing and service of a scire facias within five years after the claim was filed would give the above-quoted clause the effect of nullifying the proviso, or at least, of making it read as if the word “ every ” had been omitted, whereas the proviso, construed according to its plain general intent, qualifies what follows as well as what precedes it, and therefore requires the issuing of a scire facias within every period of five years. By this construction all parts of the act are harmonized without the rejection of any of the words by which the legislature chose to express its will. The position of the proviso in the act is not conclusive against this construction. “ While the position of a proviso in a statute has a great and sometimes controlling influence upon the extent of its applicability, yet the inference from its position cannot override its plain general intent: ” Devers v. York City, 156 Pa. 359. We have given due consideration to the argument that under the foregoing construction the defendant might be compelled to appear and file affidavits of defense to successive sci. fas. and thus be vexed by cumulative litigation for the same claim. But when it is remembered that it is as much within his power as it is within that of the plaintiff to bring the first sci. fa. to speedy trial and final judgment, the argument loses much, if not all, of its force. It is not of sufficient strength to overcome the plain meaning of the words of the proviso.

The conclusion we have reached as to the construction of the act renders it necessary to pass upon the question whether it applies to a municipal claim filed by the city of Philadelphia for removing a nuisance from private property. The Act of January 29, 1818, sec. 27, 7 Sm. L. 5, provides that the expense attending the removal of such nuisance shall be recoverable in an action at law by the board of health, in case of the neglect or refusal of the owner or occupier of the premises to remove the same within the time prescribed by the board after due notice. Section 2 of the supplement of April 7, 1830, P. L. 318, so far as material here, provided : “ That the expense attending the removal of any nuisance shall be and remain a lien upon the premises from which such nuisance has been removed, .... and the said claims may be filed, recorded and proceeded on by scire facias, to recover the same, in like manner as mechanics’ liens are recoverable.” These two acts are special and local in their application to the city and county of Philadelphia. The Act of April 16, 1845, P. L. 488, sec. 2 of which was general in its application, provided as follows: “ No debt, charge or assessment, for work hereafter done, or materials furnished by or under the authority of the board of health, or any municipal corporation, shall .... continue a lien longer than five years from the time of filing the claim, unless revived by scire facias, in the manner provided by law in the case of mechanics’ claims.” Under the act of 1836 a mechanic’s lien expired at the end of five years from the date of filing, unless revived by scire facias, issued within that period, and duly prosecuted to judgment within five years after issuing the writ: Hunter v. Lanning, 76 Pa. 25. It is plain, therefore, that, unless the law relative to a municipal claim of this character was changed by the act of 1897, the lien -was gone at the time the motion to quash the second sci. fa. was made. The act of 1897 contains no repealing clause. If it repealed the above-quoted provisions of the acts of 1830 and 1845 it was by implication only. It does not purport to be a revision of the whole subject of municipal claims, but relates only to such as “ are the final assessments, made upon any property or properties' to pay the costs, expenses or damages, or either of them, of any municipal improvements,” and have been filed “within six months from the making or confirmation of any assessment, or within six months from the decree or order of the proper court finally fixing, confirming or approving any assessment, whether said assessment shall have been made by the foot-front rule or according to benefits.” If by any latitude of construction a claim filed for the cost of removing a nuisance from private property — a charge imposed by virtue of the police power— could be held to be a municipal improvement claim, the context shows, we think, that the legislature did not have this kind of a claim in view. Moreover, at the same session they amended the Act of May 4, 1889, P. L. 79, and re-enacted that part of it which provides that no. lien entered for any municipal improvement shall remain a lien for a longer period than five years from the date of filing “ unless the same be revived and continued by a writ of scire facias within the said period and duly prosecuted to judgment, as in the case of judgment liens : ” Act of June 4, 1897, P. L. 122. “ Statutes enacted at the same session are to be construed to a certain extent as an entire act, and therefore it is said that in order to mate a later enactment repeal a former one passed at the same session there must be an express declaration or an absolute inconsistency; i. e., there is in such case probably a stronger presumption against an intention to repeal which is unexpressed than in the case of statutes passed at different sessions : ” Endlich on Interpretation of Statutes, sec. 188. In White v. City of Meadville, 177 Pa. 648, Justice Dean quoted with approbation this statement of the doctrine taken from Smith v. People, 47 N. Y. 330 : “ Statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each' is supposed to speak the mind of the same legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.” See also Mansel v. Nicely, 175 Pa. 367. So far as the provisions of the two acts of 1897 are clearly repugnant and irreconcilable it is to be presumed that the legislature intended the act of July 26 to supply the place of the act of June 4. But as to all kinds of municipal claims not clearly embraced within the provisions of the later act the presumption is that the legislature intended to leave in force the former law, which required that the scire facias be duly prosecuted to judgment as in the case of mechanics’ and judgment liens.

The question last considered was not distinctly raised and discussed at the first argument of this case. Indeed, it would seem from the opinion of the learned judge below that it was conceded in the argument before him that the claim in question was within the class of claims provided for in the act of July 26, 1887. In view of this, and of the fact that the appellee has not furnished us with a brief, we perhaps would be justified in declining to pass upon the question, if it had not been raised and argued in another case' in which the city is plaintiff and which was heard at the same time. Upon the whole we conclude that the lien of the claim was gone at the time the motion to quash the second scire facias was made and, therefore, the court was right in making the rule absolute.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Philadelphia, Appellant, v. Steward.

      Municipal liens — Scire facias — Defective sidewalk — Sewer—Act of July 26, 1897, P. L. 420.
    The Act of July 26, 1897, P. L. 420, is to be strictly construed as applying only to the particular class of claims specifically described therein. As to all kinds of municipal claims not clearly embraced within its provisions the presumption is that the legislature intended to leave in force the former law which required that the scire facias be duly prosecuted to judgment as in the case of mechanics’ and judgment liens.
    A municipal lien for the cost of repairing a defective sidewalk is not within the provisions of the act of July 26, 1897.
    . While a municipal claim need not set out the provisions of the ordinance or ordinances under which the work was done, yet the lien, being of purely statutory creation, the claim must aver upon its face all the facts necessary to sustain its validity, and unless it does so, it may be summarily stricken off on motion. To state a claim so ambiguously as to leave it in doubt whether it is for repairing a defective sidewalk, or for making a sewer connection, is not a compliance with the true intent and spirit of the rule.
    Argued Oct. 5, 1904. Reargued Oct. 3, 1905.
    Appeal, No. 264, Oct. T., 1904, by plaintiff, from order of C. P. No.l, Phila. Co., March T., 1893, No. 106, M. L. D., making absolute rule to strike off scire facias in case of city of Philadelphia v. Steward, owner, etc., and John Cadwalader, registered owner.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to strike off scire facias.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      James Alcorn, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.

      John Cadwalader, Jr., for appellee.

      May 14, 1906:
   Opinion by

Rice, P. J.,

The proceedings brought up for review upon this appeal were as-follows : April 13,1893, municipal claim filed; April 9, 1898, affidavit of service of notice filed and scire facias issued, which was returned, made known to the registered owner and nihil habet as to the owner or reputed owner named in the claim; May 18, 1898, affidavit of defense filed by the former; February 9, 1903, scire facias to revive claim, etc., returned nihil habet; November 24, 1903, rule to show cause why the scire facias should not be quashed and the claim struck off; December 9, 1903, rule absolute, from which order this appeal was taken.

The lien of this claim was gone at the end of the period of five years from the date of issuing the first scire facias, unless the act of July 26, 1897, applies to the case: Philadelphia v. Sciple, ante, p. 64. We also held in the case cited that, in view of the legislation upon the same general subject, at the same session of the legislature, and of the omission of an express repeal of prior general or local laws, the act is to be strictly construed as applying only to the particular class of claims specifically described therein. As to all kinds of municipal claims not clearly embraced within its provisions the presumption is that the legislature intended to leave in force the former law which required that the scire facias be duly prosecuted to judgment as in the ease of mechanics’ and judgment liens. The claims specifically mentioned in the act are those which ’are based on the final assessments, made upon any property or properties to pay the costs, expenses or damages, or either of them, of any municipal improvements, whether such assessment shall have been made by the foot-front rule or according to benefits. In determining whether the claim in question belongs to that class our examination upon this appeal must be confined to the record, and, of course, the affidavit of defense cannot be considered. The claim sets forth that it is “ for work done and material furnished by the said city, and charged against the property, under authority of an ordinance thereof, in repairing defective sidewalk, and duly assessed and charged as follows.” Here follows an itemized statement of charges consisting of the cost of a certain number of feet of terra cotta pipe at certain prices per lineal foot; the price of a horizontal trap ; “permit, bureau surveys, $4.00 ; ” “ plan, board of health, $1.00; ” and a penalty of ten per cent of the entire' claim. The notice served prior to issuing the first scire facias stated that the claim was “ for making underground sewer connection,” whereas the scire facias itself stated that it was “ for work done and materials furnished in repairing defective sidewalk.” This apparent discrepancy between the items of the claim and the notice served on the one hand, and the scire facias on the other, makes it difficult, to say the least, to conclude that the claim was for repairing a defective sidewalk. While a municipal claim need not set out the provisions of the ordinance or ordinances under which the work was done, yet the lien, being of purely statutory creation, the claim must aver upon its face all the facts necessary to sustain its validity, and unless it does so, it may be summarily struck off on motion : Philadelphia v. Richards, 124 Pa. 308. To state the claim so ambiguously as to leave it in doubt whether it is for repairing a defective sidewalk, or for making a sewer connection, or for some other work, is not a compliance with the true intent and spirit of this salutary rule. But, assuming that the claim was for repairing a sidewalk in front of defendant’s premises, it is argued by his counsel that it is not the kind of a claim which the legislature had in view in the passage of the act of July 26, 1897, because it is based, not on an assessment made either according to benefits or the foot-front rule, but on a liability incurred for neglect to perform a duty imposed by the police power of the city. The distinction between this kind of a charge and a local assessment in the nature of a tax based on special benefits accruing, or supposed to accrue, to landowners from local improvements is well recognized : Greensburg v. Young, 53 Pa. 280 ; Wilkinsburg v. Home for Aged Women, 131 Pa. 109 ; Philadelphia v. Pennsylvania Hospital, 143 Pa. 367 ; Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Philadelphia v. Weaver, 14 Pa. Superior Ct. 293 ; Pittsburg v. Biggert, 23 Pa. Superior Ct. 540. There is great force in the appellee’s contention that the legislature bad this distinction in mind in the passage of the two acts of 1897, the first relating to all municipal improvement claims, and the second to those belonging to the last mentioned class. The question is not free from difficulty, but we are inclined to the opin- > ion, and so hold, that this is the correct view.

• The urder is affirmed.


author: Portee, J.,

text:
    Philadelphia, Appellant, v. Reader.

      Tax liens — Defense—Affidavit of defense — Scire facias.

    Where "the city of Philadelphia issues a scire facias to revive a judgment on a tax lien, and makes the owner a party defendant, an affidavit of defense filed by the owner is sufficient, if it avers that he became owner at an orphans’ court sale for the payment of debts, that the tax claim was filed thirteen years before he became owner, and that the original scire facias had not been issued until more than five years after the first of January next succeeding the year in which the taxes became due.
    Argued Oct. 4, 1905.
    Appeal, No. 17, Oct. T., 1905, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept., T., 1879, No. 298, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia v. Lewis P. Reader, owner, etc. Lewis P. Reader, registered owner, and D. Pellman Boyer, actual and present owner.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias to revive a judgment.
    The opinion of the Superior Court states the facts.

      Error assigned was the order discharging the rule for judgment.

      Mayne B. Longstreth, with him James Alcorn, assistant city solicitors, and John L. Kinsey, city solicitor, for appellant.—
    The judgments upon the claim in suit were valid and binding upon Annie Reader. She could neither strike them off nor have them opened: Phila. v. Hiester, 142 Pa. 39; Phila. v. Allen, 20 Pa. Superior Ct. 209; Phila. v. Reeves, 15 Pa. Superior Ct. 535; Phila. v. Unknown Owner, 20 Pa. Superior Ct. 203; Phila. v. Browning, 13 Pa. Superior Ct. 164; Phila. v. Wallace, 7 Pa. Dist. Rep. 721.
    The claim in suit was not a personal debt of Annie Reader, but a tax claim binding her title as such while in her hands or in the hands of one buying it at a judicial sale for a nominal consideration : Delaney v. Gault, 30 Pa. 63; Emrick v. Dicken, 92 Pa. 78 ; White v. Ballantine, 96 Pa. 186; Northern Liberties v. Coates, 15 Pa. 245; Davidson v. Thornton, 7 Pa. 128 ; Lichty v. Hochstetler, 91 Pa. 444; Stallman’s Estate, 6 Phila. 389; Horner v. Hasbrouck, 41 Pa. 169.
    As the title of Annie Reader was by the judgment in suit subject to an in rem. claim the purchaser thereof at an orphans’ court sale would take it subject to the same claim. Such a sale is a judicial sale to which the rule of caveat emptor applies, and the purchaser takes the same title which the decedent had in the lands: Sackett v. Twining, 18 Pa. 199 ; Vandever v. Baker, 13 Pa. 121; Bickley v. Biddle, 33 Pa. 276; Diehl’s App., 33 Pa. 406; Nelson v. Nelson, 117 Pa. 278; Overdeer v. Updegraff, 69 Pa. 110; Christy v. Christy, 176 Pa. 421.
    He is bound by the record and is charged with notice of what it contains : Coyne v. Souther, 61 Pa. 455; Meigs v. Bunting, 141 Pa. 233; Saunders v. Gould, 134 Pa. 445.
    As a tax claim this lien was not discharged by the orphans’ court sale in question.

      Joseph A. Slattery, for appellee.
    — Without statutory provision taxes are not a lien upon real estate : Briggs’ Appeal, 38 Legal Int. 262; Burgwin v. Burchfied, 28 Pitts L. J. 13. They were first made a lien by the Act of February 3, 1824, P. L. 18. The duration and method of preserving the lien are prescribed by the Act of March 11, 1846, P. L. 114.
    The question of the preservation of the lien first arose in Phila. v. Scott, 93 Pa. 25, and afterwards in Phila. v. Hiester, 142 Pa. 39, and in both the claims were striken off for failure to issue sci. fa. within the five years: Phila. v. Baker, 142 Pa. 39 ; Philadelphia v. Kates, 150 Pa. 30 ; Philadelphia v. Thurlow, 5 Pa. Superior Ct. 600; Philadelphia v. Reeves, 15 Pa. Superior Ct. 535; Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203; Philadelphia v. Allen, 20 Pa. Superior Ct. 209; Haddington Church v. Philadelphia, 108 Pa. 466.
    May 14, 1906:
   Opinion by

Portee, J.,

The city, on October 21, 1879, filed a claim for registered taxes for the years 1875, 1876, 1877 and 1878, against a lot of ground and Lewis P. Reader, as owner. A scire facias issued upon this claim, on September 27, 1884, was personally served upon Reeder, and judgment was entered in the scire facias, on August 30, 1889, for want of an appearance. .Writs of scire facias to revive and continue the lien were issued in 1893; and after two niliils judgment was entered on April 4,1894. Writs of scire facias to revive and continue the lien were again issued in 1899 and on March 29, 1899, judgment was again entered after two returns of nihil habet. On November 21, 1903, a suggestion was filed of record that D. Pellman Boyer was the actual and registered owner of the lot, and he was made a party to the scire facias which issued December 11, 1903. Boyer filed an affidavit of defense, which the court below held to be sufficient, and the city appeals.

The affidavit of defense set forth that Boyer purchased the lot at orphans’ court sale, for payment of the debts of Annie Reeder, deceased, the former owner, on October 5, 1901; that the claim of the city was filed on October 21, 1879, and was for taxes for the years 1875, 1876, 1877 and 1878; and that “ the original scire facias thereon was issued September 27, 1884, more than five years after the first day of January-next succeeding the years in which the taxes became due.” These are the material averments of fact in the affidavit, and constitute the defense. The city had caused this defendant to be made a party to this proceeding, which was in the nature of a rule on him to show cause why the land should not in his hands be held liable for the tax. He was entitled to be heard and to allege any valid reason why the land in his hands was not bound by the claim. The rights of the city are to be determined under the provisions of the Act of March 11, 1846, P. L. 114, and registered taxes cease to be a lien, unless a scire facias is issued upon the claim filed therefor within five years from the first day of January next after the taxes become due ; Philadelphia v. Scott, 93 Pa. 25; Philadelphia v. Hiester, 142 Pa. 39 ; Philadelphia v. Kates, 150 Pa. 30. The fact alleged in the affidavit that the original scire facias had not issued in time appeared upon the face of the record, and was undisputed ; it was a conclusive answer to the plaintiff’s claim. The fact was sufficiently averred in the affidavit, and the effect of it upon the rights of the defendant is not to be nullified because he had erroneous views as to the rights of the former owner under the judgment which had been rendered against him. The judgment had not become a judgment in personam against Reeder, it was from its inception a proceeding • in rem: Northern Liberties v. Coates, 15 Pa. 245 ; Wistar v. Philadelphia, 86 Pa. 215 ; White v. Ballantine, 96 Pa. 186 ; Emrick v. Dicken, 92 Pa. 78; Delaney v. Gault, 30 Pa. 63. The courts may refuse to strike off a claim or open a judgment which has ceased to be enforceable against property, upon the ground that no irregularity appears upon the face of the record, or that no meritorious defense has been shown. That does not, however, have the effect of making the defendant personally liable for the claim: Pittsburg’s Appeal, 118 Pa. 458; Philadelphia v. Kates, 150 Pa. 30 ; Philadelphia v. Browning, 13 Pa. Superior Ct. 164; Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203; Philadelphia v. Allen, 20 Pa. Superior Ct. 209; Philadelphia v. Peyton, 25 Pa. Superior Ct. 350. Facts which would not be sufficient to cause a court to open a judgment already- regularly entered may, when the city becomes the actor in a new scire facias, constitute a perfect defense : Philadelphia v. Adams, 18 Pa. Superior Ct. 639.

The appeal is dismissed at the costs of the plaintiff, without prejudice, etc.


author: Porter, J.,

text:
    Philadelphia to use v. Nell, Appellant.

      Municipal lien — Scire facias — Notice to registered owner — Philadelphia County.

    Where a scire facias is issued by the city of Philadelphia on a municipal claim for curbing and grading, and personal service of the writ is had on the registered owner, and judgment is entered for want of an affidavit of defense, the city on a subsequent scire facias to revive is not .obliged to give notice to the owner who has succeeded to the title of the original defendant, although such owner may have registered his title.
    Argued Oct. 10, 1905.
    Appeals, Nos. 11 and 12, Oct. T., 1905, by defendants, from order of C. P. No 2, Phila. Co., March T., 1880, Nos. 62 and 63, M. L. D., making absolute rule for judgment for want of a sufficient affidavit o£ defense in cases of City of Philadelphia to use of Jacob M. Peters v. John Wallace and Frank Nell, registered owners, and. Samuel Rowen and John H. Stokley, suggested actual owners, and the City of Philadelphia to use of Jacob M. Peters v. Frank C. Nell and John Wallace, registered owner, Paul Thurlow, owner, and Samuel Rowen and John H. Stokely, suggested actual owners.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias to revive a judgment entered on municipal claims.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the courts

      O. R. Woodruff, for appellants.

      Byron Woodward, for appellee.
    May 14, 1906 :
   Opinion by

Porter, J.,

The city of Philadelphia, on May 18, 1880, filed a municipal' claim for curbing and grading against a lot on the southwest corner of Indiana and Boudinot streets, and against Frank G. Nell and John Wallace, registered owners, and Paul Thurlow, registered and known owner. A writ of scire facias to continue the lien of the claim was issued on March 6, 1885, and personally served upon Paul Thurlow, the registered and actual owner, and judgment duly entered, on April 25, 1885, for want of an affidavit of defense. Writs of scire facias were issued to revive and continue the lien of the claim on March 14, 1890, and April 19, 1890, respectively, and were returned nihil habet, and judgment for want of an appearance was entered on September 25, 1893. Proceedings were again taken to revive and continue the'lien of the claim in 1898, writs of scire facias having issued on June 17, and July 20, respectively, and judgment was entered upon two returns of nihil habet on October 20, 1898, for want of an appearance. On June 22, 1903, a suggestion was filed of record that Samuel Rowen and John H. Stokley were then the actual registered owners, and on the same day a writ of scire facias issued to continue the lien of the claim, which writ was personally served on Rowen and Stokley and there was a return of nihil habet as to the other defendants. An alias scire facias issued, on July 13, 1903, and was as to the defendants other than Rowen and Stoldey duly returned nihil habet. The defendants Samuel Rowen and John H. Stoldey filed affidavits of defense, which the learned judge of the court below held to be insufficient and made absolute a rule for judgment, from which order Rowen and Stoldey appeal. The affidavits aver that Paul Thurlow was the actual owner of the lot in question at the time the work was done for which the lien in this case was filed, and also at the time the original scire facias on the claim issued, and that he had duly registered his title in the bureau of surveys of the city of Philadelphia on June 8, 1876. This allegation of the affidavits makes it clear that Thurlow was the actual and registered owner of the lot at the time this municipal claim accrued as a lien of record, and it is an undisputed fact that he was in the claim named as owner, and that the original writ of scire facias was served upon him personally as in the case of a summons. The city had therefore met the requirements of the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, by making the registered owner a party to the proceeding, and had duly recovered a judgment against the property, in a proceeding to collect the claim in which there was a personal service of the writ upon the registered owner.

The only defense averred in the affidavits is'that William D. Neilson purchased the property at sheriff’s sale on July 1,1895, and duly entered his deed for the same in the registry office of the bureau of surveys on July 15, 1895; that said Neilson, the then actual and registered owner of said lot, who had duly recorded and registered his deed therefor, was not made a party defendant in the scire facias which issued to continue the lien of the claim in 1898. The deponents aver that the lien of the claim has expired because of the failure to summon Neilson as a defendant in the proceedings to revive the lien had in 1898.

The learned counsel representing the appellants contends that the registry acts of March 14,1865, and March 29, 1867, require that the registered owner at the time the scire facias issues shall be made a party to the proceedings, and that the Act of June 1, 1887, P. L. 289, “limiting the'time during which judgments shall be a lien on real estate” makes it incumbent on municipalities to summon all purchasers, who have recorded, their deeds, as terre-tenants in all proceedings upon municipal claims and for taxes. We cannot assent to these propositions. The act of 1887 relates only to liens having their foundation in the judgment; where there is a personal liability of the defendant, the proceedings to enforce payment are in personam. A judgment in general, unless restricted in its terms, is a lien upon all the defendant’s property within the. jurisdiction, and is without limitation as to the defendant. When the lien of such a judgment is said to expire, it simply loses its lien as to subsequent judgment creditors and purchasers ; the personal obligation of the defendant and the lien against him continues. Proceedings upon municipal claims are purely in rem, the proceeding is against the specific property, and a judgment in a scire facias upon sucha claim creates no lien. Although the revival of the lien is effected in the same form, the lien of the claim, either before or after judgment thereon, is of a widely different nature from that of an ordinary judgment. “It must be borne in mind, however, that judgments recovered upon mechanics’ and municipal liens, mortgages, recognizances in the orphans’ court, as to the lands of the principal cognizor, are not themselves liens as of the date of their entry, they simply give effect to the lien of the original debt, or lien which they represent, respectively, as a means of- enforcement and collection; therefore it is that the lien of mechanics’ or municipal claims, when referred to in the various acts of assembly, even after judgment, is expressed as the lien of the debt or claim and not of the judgment: ” Haddington Church v. Philadelphia, 108 Pa. 466; Helmbold v. Man, 4 Wharton, 410; Wills v. Gibson, 7 Pa. 154.

As against claims for taxes and municipal improvements the right of an owner to personal notice, in the city of Philadelphia, depends upon whether he has registered his title, under the provisions of the acts of 1865 and 1867; the fact that he had recorded his deed gives him no advantage. When the title has not been registered at the time the claim accrues as a lien of record, the mention of the name of the owner in connection with the assessment of the land is only required as descriptive of the land, and when the assessment and the claim themselves clearly and absolutely identify the land, that is all that is required. The owner of land who has not registered his title may have his property sold under proceedings to which he is not made a party and of which he has no notice: Northern Liberties v. Coates’s Heirs, 15 Pa. 245; Delaney v. Gault, 30 Pa. 63; Soullier v. Kern, 69 Pa. 16; Wistar v. Philadelphia, 86 Pa. 215; Emrick v. Dicken, 92 Pa. 78; White v. Ballantine, 96 Pa. 186; Philadelphia v. Unknown Owner, 148 Pa. 536; Philadelphia v. Peyton, 25 Pa. Superior Ct. 350. If a terre-tenant is entitled to notice of a scire facias upon a municipal claim which accrued as a lien of record before he acquired title, it can only be because of the provisions of the registry acts of 1865 and 1867. The Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, were intended to provide and perfect a system of registration of all the titles of the city, for the purpose of rendering the assessment and collection of taxes convenient and certain, and the protection of the interests not only of citizens but of the municipality. The earlier statute related to the general taxes only, the later one related to both taxes and municipal claims. The statutes imposed upon owners of property the duty of registering their title, and the provision regulating the procedure to collect taxes and municipal claims which it is now material to consider is in,the following words: “ And further, no property, so returned, shall be subject to sale for taxes, or other municipal claims thereafter to accrue as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit, and service of the writ on him, made as in case of a summons.” The registration of the property, at the time the claim accrues as a lien of record, determines the name of the owner who is entitled to personal service. The owner who has returned his property is entitled to personal service of the scire facias upon a claim which accrues as a lien of record after the registration. The municipality is no more bound to give personal notice to one who subsequently becomes a registered owner than it is to notify a former registered owner. The right which these statutes vest in an owner who has registered his title is, that his property shall not be subject to sale, “ for taxes, or other municipal claims thereafter to accrue, as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit, and service of the writ on him, made as in case of a summons.” This claim accrued “ as a lien of record ” on May 13, 1880, and was filed against the lot and Paul Thurlow as owner; it is an undisputed fact that Paul Thurlow was the registered and actual owner, and so remained until 1895. The original scire facias was served personally upon Thurlow, and judgment was duly entered against him for want of an affidavit of defense, and this fully complied with the requirement of the act of 1867, that there be no sale of a property, “ except in the name of the owner as returned, and after recovery by suit, and service of the writ on him, made as in case of a summons.” William D. Neilson did not acquire title or register his deed until July 15,1895. This claim had accrued as a lien of record long before that date, and the registration of Neilson’s title could have no effect upon it or the proceedings under it. Neilson by registering his title became entitled to the protection of the act of 1867, as to claims thereafter to accrue as liens of record, but as to liens which had accrued before he acquired title, he must have known that it would be necessary for him to examine in the names of former registered owners. The acts of 1865 and 1867 did not change the nature of proceedings upon municipal claims, they are still proceedings in rem, but those statutes require that when an owner has registered his title, the proceeding against the property shall be in his name, upon any claim which accrues as a lien of record while he is the registered owner. The scire facias to continue the lien, which issued in 1898, imposed no new lien upon this property and William D. Neilson was not entitled to notice as a terre-tenant.

The judgment is affirmed.


text:
    Philadelphia to use v. Wallace.
    May 14, 1906:
   Opinion by

Porter, J.,

This case presents the same question which was considered in Philadelphia v. Nell and others, ante, p. 78, in which an opinion has this day been filed. The specifications of error are dismissed and the judgment is affirmed.


author: Per Curiam,

text:
    Freeman v. Baras, Appellant.

      Contract — Misrepresentations—Auctioneer—Principal and agent — Check.
    In an action upon a check, an affidavit of defense is insufficient to prevent judgment which avers that the plaintiff, an auctioneer, offered for sale two houses which he wrongfully represented were two three-story brick dwellings; that the defendant as an agent, of which agency the plaintiff had knowledge, relying on the representations, bid on the houses, and the same were knocked down to him; that he then gave plaintiff his personal check for the deposit money required; that subsequently defendant ascertained that the houses were not three-story brick houses as represented, but were houses consisting of three-story brick front buildings, and two-story frame rear buildings; that defendant thereupon repudiated the sale and stopped payment of his check.
    Argued Dec. 18, 1905.
    Appeal, No. 210, Oct. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1905, No. 4,276, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel T. Freeman, trading as Samuel T. Freeman & Co., v. Jacob Baras.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a check.
    The affidavit of defense was as follows :
    “Jacob Baras, being duly sworn according to law, deposes and says that lie lias a full, just, true, Complete and legal defense to the whole of the plaintiff’s claim, of the following nature and character, to wit:
    “ The plaintiff, Samuel T. Freeman, is engaged in the auctioneering business.
    “ That on August 9, 1905, he offered for sale at auction, at his place of business, S. W. Cor. 12th and Walnut Sts., Philadelphia, the premises at 816 and 818 Wharton street, Philadelphia, which premises the said plaintiff advertised in a catalogue issued, published and distributed by him to contain improvements, consisting of two three-story brick dwellings, a copy of which is hereto attached and made a part hereof.
    “ The plaintiff also at the time of offering the said premises for sale on the said 9th day of August, 1905, represented verbally before opening bids thereon that the said premises contained improvements consisting of two three-story brick dwellings.
    “ On the faith of the said written and verbal representations that the said improvements consisted of two three-story brick dwellings, the defendant bid thereon $6,000, at which price the said defendant, as agent, purchased the said premises under the representations as aforesaid, and the plaintiff was advised at the time of said purchase that the defendant was acting as agent merely, and that the properties were not bought for the defendant himself.
    “The defendant then and there, for and on behalf of his principal, gave to the plaintiff his check mentioned in the plaintiff’s statement of claim for the sum of $200 as a deposit, or on account of the purchase money, relying and believing the said representations of the plaintiff to be true and correct.
    “ Subsequently, the defendant ascertained that the said representations of the plaintiff were untrue, incorrect and false.
    “ That the said improvements on the said premises do not comprise two three-story brick dwellings as represented by the plaintiff, but in truth the said improvements consist of two three-story brick front buildings and two-story frame rear buildings, and not three-story brick dwellings as represented.
    “ That as soon as the defendant learned that the said representations of the plaintiff were untrue and incorrect he repudiated the sale of the properties, and refused payment on the check mentioned above, on the ground of said misrepresentations.
    “ The defendant therefore avers that he is not indebted to the plaintiff in the sum of $200, nor any other sum.
    “All of which facts he will prove at the trial of this case.”

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

      Louis Goodfriend, for appellant.
    — All that the affidavit is required to set forth, are facts which would absolve the defendant from liability, and the first defense which is set forth is that of misrepresentation, which is well established and is a sufficient ground for a recision of a contract: Sutton v. Morgan, 158 Pa. 204; Tyson v. Passmore, 2 Pa. 122; Brotherton v. Reynolds, 164 Pa. 134 ; Harner v. Fisher, 58 Pa. 453; Ley v. Huber, 3 Watts, 367 ; Rumsey v. Shaw, 212 Pa. 576; McCandless v. Young, 96 Pa. 289; Lake v. Weber, 6 Pa. Superior Ct. 42; Lare v. Westmoreland Specialty Co., 155 Pa. 33; Short v. Stevenson, 63 Pa. 95.
    It is well established that where an agent buys for a third person, of which the vendor is informed by the agent at the time, the agent is not personally liable: Joyce v. Sims, 2 Dall. 223; Seyfert v. Lowe, 7 W. N. C. 39; Beeson v. Lang, 85 Pa. 197.
    It is further contended that even although the cheek on which this suit is brought is drawn by the defendant, he is still nevertheless not liable, since the plaintiff knew that he acted in the capacity of an agent, and that he merely gave his personal check as a matter of convenience: Roberts v. Austin, 5 Wharton, 313.

      L. Albert Gray, for appellee.
    — Representations, if made, must be shown to be material to the contract, that the vendee had a right, if material, to rely upon them, and that injury was caused by the representations : Marshall v. Hubbard, 117 U. S. 415 (6 Sup. Ct. Repr. 806); Mahaffey v. Ferguson, 156 Pa. 156; Weimer v. Clement, 37 Pa. 147; Slaughter v. Gerson, 80 U. S. 379; Shisler v. Baxter, 109 Pa. 443; Whetherill v. Neilson, 20 Pa. 448.
    An agent is prima facie liable on a check signed by him in his own name: Barclay v. Pursley, 110 Pa. 13.
    An agent is personally liable on his contract made by him as agent when he fails to name his principal: Meyer v. Barker, 6 Binney, 228; Horstman v. Fox, 2 W. N. C. 381.
    May 14, 1906 :
   Per Curiam,

The six judges who heard this appeal are equally divided in opinion as to the sufficiency of the affidavit of defense. Therefore the judgment is affirmed.


author: Beaver, J.,

text:
    Polish National Catholic Church of St. Francis.

      Corporations — Names—Conflicting titles.

    The Superior Court will not review the discretion of the court of common pleas in refusing to grant a charter to a church congregation under the name of the Polish National Catholic Church of St. Francis, where the application for the charter is resisted by an unincorporated congregation already in existence under the name of the St. Francis Roman Catholic Church.
    Argued Jan. 9, 1906.
    Appeal, No. 43, Jan. T., 1906, by the Polish National Catholic Church of St. Francis, from order of C. P. Luzerne Co., refusing Charter In re Application for Charter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Application for charter. Before Halsey, J.
    The opinion of the Superior Court states the case.

      Error assigned was order refusing the charter.

      John M. Garman, for appellant.
    — There is sufficient dissimilarity in the names : O’Hear v. De Goesbriand, 33 Vt. 593; Doland v. Baltimore, 4 Gill (Md.), 394; Kidd Bros. & Burgher Street Wire Co., 17 Pa. C. C. Rep. 238 ; Citizens’ Trust etc., Co., 9 Pa. C. C. Rep. 366; Koehler v. Sanders, 122 N. Y. 65 (25 N. E. Repr. 235); Hygeia Water Ice Co. v. New York Hygeia Ice Co., 140 N. Y. 94 (35 N. E. Repr. 417).

      T. P. Solan, with him P. A. O'Boyle, for appellees.
    — A charter will not be granted to a corporation with a name so similar to that of an existing corporation as to lead to confusion : Kidd Bros. & Burgher Steel Wire Co., 5 Pa. Dist. Rep. 56 ; Bradley Fertilizer Co., 19 Pa. C. C. Reps. 271; West End Companies, 27 Pa. C. C Rep. 641; Maccabee Societies, 27 Pa. C. C. Rep. 651; Philadelphia Artisans’ Institute, 8 Phila. 229; Magill v. Brown, 16 Fed. Las. 408 ; Methodist Church v. Remington, 1 Watts, 219; Beitel’s Ecclesiastical Laws of Pa. 79; In re United States Mortgage Co., 83 Hun, 572 (32 N. Y. Supp. 11); Incorporation of St. Stanislaus Polish National Reformed Church of Scranton, 4 Laca. Jurist, 21; International Committee of Young Women’s Christian Assns. v. Young Women’s Christian Assn., 194 Ill. 194 (62 N. E. Repr. 551) ; Sons of Progress, 14 W. N. C. 31; Waverly Ladies of the Red Cross, 12 Pa. C. C. Rep. 589; Phila. Trust Safe Deposit & Ins. Co. v. Phila. Trust Co., 123 Fed. Repr. 534; Edison Storage Battery Co. v. Edison Automobile Co., 67 N. J. Eq. 44 (56 Atl. Repr. 861) ; In re Manhattan Dispensary, 7 N. Y. St. Rep. 871.
    May 14, 1906 :
   Opinion by

Beaver, J.,

Assuming for the purposes of this case that the appellant correctly states the name of the church in Nanticoke already in existence, although not incorporated, as the St. Francis Roman Catholic Church, the name, under which the applicants in their petition seek to be incorporated, is the Polish National Catholic Church of St. Francis. Selecting from both, therefore the prominent distinguishing words, — and we have, in the one case, the St. Francis Catholic Church, and, in the other, the Catholic Church of St. Francis, — it would be a great stretch of authority on our part to declare that the court below, in refusing a charter to the organization last named, violated the discretion which vests in and rests upon the court of common pleas.

This question has been lately considered by us in Phila. Lying-In Charity v. Maternity Hospital, 29 Pa. Superior Ct. 420. It was there said that: “The similarity of name to that of another corporation having its hospital in the vicinity was a matter eminently proper for consideration by the court, to whose sound legal discretion the application was addressed.” It was further said : “ This is not because any absolute vested right of the appellees would be infringed by the appellants’ adoption of the proposed name, but because of the tendency to confusion that might result. The weight to which this matter was em titled depended to some extent upon local conditions, concern’ing which evidence was admissible in that court but which is not, and could not, be brought up for our consideration. The proceedings in the court below are free from irregularity, and, as the refusal of the application, especially in view of the exceptions filed by the appellee and the questions of fact- raised thereby, is an order which the court had discretionary power to make, upon due consideration of the pertinent facts and circumstances, it is not reversible, upon appeal, except for abuse of discretion.”

These remarks apply with force to the present case and are, in our opinion, decisive of it. It is not necessary to cite the authorities referred to in the case just quoted and many others of like character.

With the ecclesiastical side of this controversy, if there be an ecclesiastical side to it, we have nothing whatever to do. Whether the so-called Roman Catholic Church has the exclusive right to the name Catholic, or whether the universal creed of Christendom — “ I believe in the Holy Catholic Church”— is a protest against such an assumption need not be discussed here. This is purely a civil question. Did the court exercise sound legal discretion in reaching the conclusion that the use of these names in the same locality would occasion confusion and annoyance. We cannot say, as a matter of law, that it did not. The proceedings, therefore, being regular on their face, the decree must stand. It is affirmed.


text:
    Spotts v. Eisenhauer, Appellant.

      Equity — Specific performance — Inadequate consideration — Judgment.
    A court of equity will not enforce the specific performance of a contract to purchase a judgment, where it appears that the defendant in the bill agreed to pay $900 for a judgment from which there was no reasonable hope of realizing one dollar. In such a case the plantiff will be left to his remedy at law.
    Argued March 6, 1906.
    Appeal, No. 14, March T., 1905, by defendants, from decree of C. P. Union Co., May T., 1904, No. 2, on bill in equity in case of William H. Spotts, Executor of Henry Eisenhauer et ah, v. Semmira Eisenhauer et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.

      Bill in equity for specific performance. Before McClure, P. J., and J. H. Blind and Henry Ernst, associate judges, unlearned in the law.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree for specific performance.

      William H. Hachenberg, for appellant.
    — This was the specific performance of an inequitable and unconscionable bargain : Schimpff v. Dime Deposit & Discount Bank, 208 Pa. 380; Friend v. Lamb, 152 Pa. 529; Elbert v. O’Neil, 102 Pa. 302; Diamond State Iron Co. v. Todd, 12 Cent. Repr. 341; Foll’s Estate, 91 Pa. 434; Oil Creek R. R. Co. v. Atlantic & Great Western R. R. Co., 57 Pa. 65; Maguire v. Heraty, 163 Pa. 381; Miles v. Stevens, 3 Pa. 21; Freetly v. Barnhart, 51 Pa. 279; Weise’s App., 72 Pa. 351; Miller v. Fulmer, 25 Pa. Superior Ct. 106.

      George B. Beimensnyder, with him Philip B. Linn, for appellees.
    — The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The very object of compromise is to avoid the risk or trouble of that question. This principle is especially applicable to family arrangements and compromises: Lewallen’s Estate, 27 Pa. Superior Ct. 320 ; Weaver’s App., 115 Pa. 59 ; Kramer v. Dinsmore, 152 Pa. 264; Ralston v. Ihmsen, 204 Pa. 588.
    May 14, 1906:
   Opinion by

Porter, J.,

The plaintiffs in this proceeding sought to enforce the specific performance of two contracts. Under the provisions of the first contract Semmira Eisenhauer, one of the defendants, had agreed to resign as executrix of the will of her deceased husband, Henry Eisenhauer, and to waive all right to commissions as said executrix. The court below found as a fact, upon abundantly sufficient and uncontradicted evidence, that Semmira Eisenhauer always had been willing to perform these covenants, and had offered to do so before the bill was filed. It is therefore manifest that as to that contract there was no warrant for the filing of the bill and putting costs upon the defendants. The court further found, upon evidence equally satisfactory, that this contract was entirely distinct from and was concluded before the beginning of the negotiations which resulted in the contract hereinafter referred to. This eliminates the agreement of the executrix to resign and waive her right to commissions from consideration in the present case.

The real question at issue arises out of another contract, relating to the sale of a judgment held by the estate of Henry Eisenhauer against William S. Eisenhauer, his son. William S. Eisenhauer was at the date of the death of his father indebted to the latter to a considerable amount, $900 of which was in the form of a judgment, in the’ court of common pleas, of Union county. William S. Eisenhauer was insolvent, and the only property, real or personal, possessed by him out of which the money could be made on the judgment held by the estate was a farm upon which that judgment was alien. The parties plaintiff and defendant met, in December, 1903, and William H. Spotts, acting executor of Henry Eisenhauer, with the consent of the other plaintiffs, the legatees and devisees under the will, agreed to sell the $900 judgment held by the estate against William S. Eisenhauer to Semmira Eisenhauer, his mother, and to release William S. Eisenhauer from liability for his entire indebtedness to the estate, in consideration of which Semmira Eisenhauer agreed to release to the estate $900 out of a legacy of $1,300 which she took under the will of her deceased husband, Henry Eisenhauer, and William S. Eisenhauer agreed to release all his rights as a legatee under the will. There was some delay in the execution of the papers necessary to carry the contract into effect, and about two months later, or early in February, 1904, Semmira Eisenhauer, through her attorney, notified the other parties that her offer was withdrawn and she declined to carry the arrangement into effect. The plaintiffs subsequently filed this bill to compel the specific performance of the contract. The thing which it is proposed to compel Mrs. Eisenhauer to do is to buy from the estate a judgment which it holds against her son, William S. Eisenhauer, who is also the son of the decedent, and pay for that judgment its full face value by releasing $900 of the legacy which she took under the will of her deceased husband. We must not lose sight of the fact that this is not an action at law for damages for the breach of the contract, nor is it a distribution of the estate of Henry Eisenhauer in the orphans’ court; it is a proceeding in equity to specially enforce the contract according to its very terms. What, under the terms of the contract in question, do the plaintiffs propose to give Mrs. Eisenhauer for this $900 ? A judgment for $900 against William S. Eisenhauer, who it is admitted is and was insolvent, and the only source from which that judgment could possibly be paid is a certain farm upon which the judgment is a lien. The learned judge of the court below after carefully considering the evidence found the following facts: “ The farm of William S. Eisenhauer against which the judgment for $900 is a lien is worth about $35.00 per acre, or a total of $3,220. There are two prior liens, one for William H. Hackenberg’s use for the sum of $1,900, and one in favor of Susan Fegley for $1,200, making a total of $3,100 of principal debt, on which there is no doubt some interest due — how much we do not know — so that the total amount of liens is in excess of the value of the farm, and as William lias no other property, real or personal, out of which to make the money, the enforcement of this contract will entail considerable pecuniary loss upon Mrs. Eisenhauer.” The costs on these two judgments which were prior liens would take precedence over the $900 judgment, and, although the learned judge did not find the amount of interest due, the evidence shows that there was $57.00 interest due on the $1,900 judgment. The defendant in the judgments was insolvent and a sheriff’s sale would be necessary to produce a fund out of which the judgments could be paid. The farm was worth ' $3,220, which seem to be a liberal estimate under the evidence, but it is the amount found by the court below; there would first have to be paid out of the proceeds the two prior judgments with their interests and costs ; the principal and interest at the time the parties made this contract amounted to $3,157 ; this would leave $63.00 to pay the costs of the sheriff’s sale and the costs upon the two prior judgments; there would not be much left of the $63.00. The truth is that Mrs. Eisenhauer agreed to pay $900 for a judgment, from which she could have no reasonable hope of realizing one dollar. The plaintiffs had an adequate remedy at law, in the form of an action for damages, or they could have raised the question upon the distribution of the estate of Henry Eisenhauer, in the orphans’ court; but they have come into a court of equity and appealed to the conscience of a chancellor, asking that this contract be specifically enforced. There was no change in the situation of the parties between the time the contract was made and the date when they received specific notice that Mrs. Eisenhauer refused to perform.

The learned judge of the court below made the question of the right of plaintiffs to equitable relief turn upon the sufficiency of the consideration to support the contract. There can be no question that the consideration was sufficient to support the contract as a binding obligation in a court of law. The contract related to a sale of personal property and was wholly executory. The sufficiency of the consideration to support the contract was not the determining question in this case. The cases in which equity will decree a specific performance of a contract for the sale of personal property are exceptional, although the power to do so unquestionably exists : McGowin v. Remington, 12 Pa. 56. “ When, however strong, clear and emphatic the language of the contract, however plain the right at law, if a specific performance would for any reason cause a result, harsh, inequitable and against good conscience, the court should refuse such a decree and leave the parties to their remedies at law: ” Schimpff v. Dime Deposit & Discount Bank, 208 Pa. 380 ; Oil Creek Railroad Company v. Atlantic & Great Western Railroad Company, 57 Pa. 65; Friend v. Lamb, 152 Pa. 529; Freetly v. Barnhart, 51 Pa. 279; Elbert v. O’Neil, 102 Pa. 302; Rennyson v. Rozell, 106 Pa. 407. Mr. Justice Clark, who spoke for the Supreme Court in the case last above cited, said: “ Relief, therefore, is not the absolute right of either party — it is of grace only, and rests in the discretion of the court, to be exercised upon a consideration of all the circumstances of the case. That discretion is, of course, not an arbitrary one, depending upon the mere pleasure of the court, it is controlled by recognized and established rales ; and while no rule may be announced which will be applicable to all cases, in general it may be said, that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice, and that it will be withheld where upon a like view it appears that it will produce hardship or injustice to either of the parties.” This rule has been recognized in numerous cases: Henderson v. Hays, 2 Watts, 148; Foll’s Appeal, 91 Pa. 434; Maguire v. Heraty, 163 Pa. 381; Miles v. Stevens, 3 Pa. 21; Weise’s Appeal, 72 Pa. 351; Miller v. Fulmer, 25 Pa. Superior Ct. 106.

We are of opinion that this contract was upon the part of the widow so exceedingly improvident that a chancellor ought not to be called upon to enforce it according to its terms; the parties should be left to their remedy at law.

The decree is reversed and the bill is dismissed at the costs of the plaintiffs, without prejudice to their right to raise the same question in an action at law, or upon distribution of the estate of Henry Eisenhauer in the orphans’ court.


text:
    Carskaddon, Appellant, v. Miller.

      Parent and child — Gift—Promissory note — Evidence.
    In an action by a daughter against her father’s administrator, on a promissory note, a verdict and judgment for the defendant will be sustained where the evidence shows that the father gave the note to his daughter on the understanding that she should return it, if he so demanded; that he did so demand, and that she refused to return the note.
    Argued March 8, 1906.
    Appeal, No. 18, March T., 1906, by plaintiff, from judgment of C. P. Clinton Co., May T., 1899, No. 208, on verdict for plaintiff in case of Beckey Carskaddon v. Clarence Miller, administrator of James Miller, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a judgment note. Before Mayer, P. J.
    For the facts see 25 Pa. Superior Ct. 47.
    The court charged in part as follows:
    [The note was placed in her custody under this agreement to hold it until demanded by her father, and if it was demanded by him she was bound to return it and could not retain it and bring suit upon it. If it was not demanded in his lifetime then she would he entitled to recover the amount of the note and interest.] [4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned among others was (4) above instruction, quoting it.

      C. S. McCormick, for appellant.

      S. E. Furst, with him C. (7. Furst, for appellee.
    May 14, 1906 :
   Opinion by

Beaver, J.,

When this case was previously here — Carskaddon v. Miller, 25 Pa. Superior Ct. 47, — it was sent back, in order that the testimony contained in an offer, fully set forth in the opinion, which had been rejected in the trial, should be heard. We then said:

“ Taking the offer as verity, as we are bound to do, it was evidence to show the interpretation which the parties placed upon it (the agreement under which the note was held by the plaintiff), and was an admission on the part of the plaintiff that she held it subject to her father’s control, and that it was his and not hers.”

On the retrial, the testimony was admitted. The offer was made good. The issue of fact thereby raised was fairly submitted to the jury. Its finding is in favor of the defendant and distinctly negatives the contention of the plaintiff that the note upon which the suit was founded was a gift from her father to her.

There is nothing else in the case. It was fairly tried. The testimony was competent and was carefully submitted to the jury. The verdict should stand.

Judgment affirmed.


text:
    Commonwealth v. Sharpless and West, Appellants.

      Criminal law — District attorney — Grand jury — Submission of bill to grand jury — Discretion.
    The action of the district attorney in submitting a bill to the grand jury with the permission of the court, but without a previous commitment, will not be reversed by the appellate court where there is no manifest and flagrant abuse of discretion; and it is immaterial that the district attorney has not stated his reasons for his action.

      Criminal law — Poor directors — Falsification of books.

    Directors of the poor may be convicted of falsifying their books, although they are acquitted at the same time of appi’opriating the moneys represented by the false entries.
    Argued March 12,1906.
    Appeals, Nos. 27 and 28, Oct. T., 1906, by defendants, from judgment- of Q. S. Delaware Co., on verdicts of guilty in cases of Commonwealth v. Frank E. Sharpless and Commonwealth v. Newton P. West.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Be ayer, JJ.
    Affirmed.
    Indictment for embezzlement and for falsifying books. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were as follows :
    1. The learned trial judge erred in overruling the defendants’ objection to granting special leave to the district attorney to send district attorney’s bills to. the grand jury as follows:
    September 21, 1905, transcript quashed. Eo die: District attorney moves the court for special leave to send district attorney’s bills to the grand jury. Eo die : Defendants object. 1. Because there is no great public, pressing or adequate necessity or exigency justifying such action. 2. Because the defendants were first arrested and bound over by a justice of the peace whose return was quashed and the motion of the district attorney is-made to overcome the effect of the quashing of the return. 3. Because the district attorney upon application of defendants would not set out or state liis reasons or the necessity for sending out such bills, and the court was moved to refuse the application unless the district attorney would state his reasons or the nec.essity. Eo die : Defendants’ objections overruled, to which the defendants except. Eo die: Exception granted the defendants and bills sealed.
    2. The learned trial judge erred in overruling the defendants’ motion to require the district attorney to state his reasons sending special bills to the grand jury as follows :
    Eo die : The court declined to require the district attorney on motion of defendants to state his reasons, or the necessity for his said application. Eo die : Defendants except. Eodie: Exception granted the defendants and bill sealed.
    3. The learned trial judge erred in overruling the defendants’ motion to quash the indictment as follows :
    September 17, 1905. Morning session.
    (Defendants each make a motion to quash indictment.).
    (Motion overruled.)
    An exception is granted to each of the defendants.
    4. The learned trial judge erred in charging the jury that they could convict of falsifying the books and acquit of- appropriating the money to their own use as follows:
    “ It is for you to determine whether under the evidence, these defendants have beyond a reasonable doubt violated, the provisions of the statutes referred to or any of them. You may convict them of any one and acquit the rest, or you may. acquit them of all.”

      W. Roger Fronefield and Albert J. Williams, for appellants.

      W. B. Broomall, with him Josiah Smith, district attorney, and A. B. Geary, for appellee. ' •
    May 14, 1906 :
   Opinion by

Rice, P. J.,

The defendants were arrested and had a hearing before a justice of the peace upon the charges contained in the indictments. But the magistrate’s return of the proceedings was defective in that it failed to set forth that the offenses were, committed in Delaware county, and for that reason it was. quashed by the court upon the defendants’ motion, • Upon the same day, by special leave of court and against the objections of the defendants, the district attorney submitted the bills to the grand jury. The objections above referred to are set forth in the first assignment of error, and were, in substance, that there was “ no great public, pressing, or adequate necessity justifying such action,” and that the district attorney refused upon the defendants’ application “ to set out or state his reasons or the necessity ” therefor. The action of the court in granting special leave notwithstanding the defendants’ objections, in refusing to require the district attorney to state his reasons, and in refusing to quash the indictments, are the subjects of complaint in the first three assignments of error.

We do not deem it necessary to attempt a restatement, or to enter into an extended discussion, of the modes of initiating criminal prosecutions in this commonwealth. This was done by Mr. Justice Clark, in Commonwealth v. Green, 126 Pa. 531, and to his opinion we call attention. It is sufficient for present purposes to say that the general doctrine enunciated by Judge King, in Lloyd & Carpenter’s Case, 3 Clark, 188, relative to the discretionary power of the district attorney to prefer a bill of indictment without a previous binding over or commitment of the accused, and to the principles which ought to guide that officer in the exercise of this extraordinary power, and to the safeguards against an abuse of it, has been accepted and reiterated in the decisions of the Supreme Court and of this court, and must be regarded as the settled policy of the law in this commonwealth: Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531; Commonwealth v. Brown, 23 Pa. Superior Ct. 470. We have no disposition, even if we had the power, to enlarge the number of exceptional cases in which the commonwealth will be justified in departing from the usual mode of proceeding by complaint and hearing before a committing magistrate. But, as was said by Mr. Justice Woodward, it is apparent that upon considerations involving the maintenance of the public security, it is necessary that this extraordinary and delicate authority be lodged somewhere, and it is apparent also that it has been lodged in the prosecuting officer of the commonwealth; it is to be exercised, in the ordinary case, under the supervision of the proper court of criminal jurisdiction, and in all oases of its exercise is subject to its revision and approval; further, the action of the officer and the court can be brought to the appellate court for purposes of review only when the abuse of their discretion has been “ both manifest and flagrant: ” Rowand v. Commonwealth, 82 Pa. 405. So in Commonwealth v. Green, the Supreme Court, while approving the action of the quarter sessions in quashing the bill, took pains to declare, that if the court in the exercise of its discretion had sustained the indictment, and brought the defendant to trial and conviction upon it, it was quite improbable that the Supreme Court would have disturbed the judgment; “it is only for a flagrant abuse of this discretion, as we have said, this court would interfere.” A careful study of these well-considered cases leaves no room for doubt that, in stating the rule governing the review of such action, the words “manifest and flagrant” were used advisedly, and that the refusal of the appellate court to reverse and set aside the action of the district attorney, which has been approved by the quarter sessions, imports only a determination that no flagrant abuse of discretion is manifest, not necessarily that the appellate court would take the same action if the matter were committed to its discretion. We have therefore acted upon this principle in all of the cases that have come before us, amongst which may be cited: Commonwealth v. Montross, 8 Pa. Superior Ct. 237; Commonwealth v. Beldham, 15 Pa. Superior Ct. 33; Commonwealth v. Sheppard, 20 Pa. Superior Ct. 417; Commonwealth v. Brown, 23 Pa. Superior Ct. 470. The reasons which influenced the district attorney to resort to this mode of procedure are not set forth in the record, nor is it a fatal objection upon appeal that the court did not require this to be done. This point was decided in the case last cited, after a thorough and exhaustive argument by counsel and a deliberate consideration by us, and we see no reason for changing or modifying the conclusion there reached. It necessarily follows that, upon appeal, no presumption that the district attorney did not have valid reasons for proceeding in this mode arises from his refusal to set them forth upon the record, or to state them for the information of the defendants. There is another feature of the case to be noticed, which is that the defendants had a preliminary hearing before a magistrate upon the charges .contained in the indictments. Although, owing to the quashing of the magistrate’s return, the ease, viewed from a technical standpoint, may perhaps be in the same situation as if the defendants had not had the opportunity, which a preliminary hearing affords, to inform themselves as to the nature of the charges and of the evidence, yet, viewed from the standpoint of .substantial merit, the fact that such opportunity had been afforded them deprives their objection to the mode of procedure of much, if not all, of its force. But apart from this consideration, and viewing this as a district attorney’s bill strictly, “ that is a bill sent to the grand jury by that officer upon his official responsibility and by leave of court,” we are unable to conclude from the record before us that the action complained of was an abuse of discretion both manifest and flagrant. Therefore the first three assignments are overruled.

To have a correct understanding of the question raised by the fourth assignment of error it is necessary briefly to review the evidence.' The defendants were directors of the poor for the county of Delaware, and as such received from the county a considerable sum of money to be expended by them in the performance of the duties of their office. This money, said to amount to $40,000 or more, was deposited by them in a bank in the name of one of them as treasurer. It was drawn out upon orders issued by the directors, and the directors kept at the county house a cashbook in which, properly, the amounts, dates, numbers, payees and purposes of these orders were set down. In the audit of their accounts for the year 1904, suspicion was directed to ten orders purporting to have been issued to different persons for different amounts, aggregating about $1,500. These orders purported to have been indorsed by the payees and subsequently indorsed by one or the other, and sometimes by both, of the defendants. Without going into details further, it is sufficient to say that there was abundant evidence to warrant a jury in finding that the names of these payees were fictitious ; that the money received upon the orders was not received by them but was received by one or the other of the defendants; and that the corresponding entries in the cashbook in the names of the ostensible payees, instead of in the names of the defendants, were not true entries. Before the proceedings of the auditors were concluded the defendants repaid the amount of these orders to the poor district, and then put in a claim for the amount of them, which was disallowed by the auditors. The orders and the bills were retained by the defendants, and since then have been in their possession or under their control. We have not undertaken to recite the incriminating testimony, but only to state in a general way the outlines of the transactions upon which the indictments were founded.

It is important to notice that the defendants were acquitted on the second and third counts of the indictments, which were drawn under section 65 of the Act of March 31, 1860, P. L. 382, and were convicted on the fifth count, which was drawn under the second section of the Act of June 12, 1878, P. L. 196. It cannot be declared as an abstract proposition that a verdict of guilty, which implies that the accused, being an officer of a quasi municipal corporation, as such received or possessed himself of the money of the corporation, otherwise than in payment to him of a just debt or demand, and, with intent to defraud, omitted to make a full and true entry thereof in the books and accounts of the corporation, would be necessarily inconsistent with a verdict acquitting him of the charge of unlawfully and fraudulently converting the money to his own use. In other words, a motion in arrest of judgment could not be sustained. This, we think, needs no elaboration. But it is argued that under the evidence in the case, a verdict of not guilty of the latter charge would necessarily imply an exoneration of the defendants, “ from getting or even using the money of the poor district represented by the ten orders,” and therefore it was erroneous to charge, as the court did in effect, that the jury might convict on the fifth count notwithstanding they acquitted on the second and third counts. We cannot assent to this proposition. The fallacy consists in the unwarranted assumption that the verdict of acquittal on the second and third counts necessarily implies a finding by the jury that the names of the payees in the orders were not fictitious, and that the money represented by them went to the payees and not to the defendants. It is difficult to see how the jury could find the facts necessary to a conviction on the fifth count, as they were fully warranted by the evidence in doing, without also concluding that the defendants were guilty of the charges contained in the second and third counts; but we cannot say that this was beyond the range of possibility. It is not for us to attempt to define the processes of reasoning by which the jury reached the conclusions they did; it is sufficient to say that they are not absolutely repugnant or inconsistent. Therefore the instructions complained of were not erroneous. In effect, as shown by the verdict, they were favorable rather than prejudicial to the defendants. In conclusion, the evidence going to establish the facts essential to a conviction on the fifth count was abundant, the questions were submitted to the jury in a clear and impartial charge, and we find no error in the record for which the judgments should be reversed.

The judgment in each of the foregoing cases is affirmed and the record in each case is remitted to the court below to the end that the sentence imposed upon each defendant be fully ■ carried into effect.


author: Henderson J.,

text:
    Allegheny County Light Company v. Thoma, Appellant.

      Account render — Evidence—Mistake—Electric light company.

    Where a customer of an electric light company has received monthly bills, which, through the gross mistake of a clerk, were much less in amount than the contract called for, and has paid such bills, he cannot set up such bills as an account stated in an action against him to recover the difference between the amount of the bills an,d the amount due under the contract.
    An account stated may be opened or falsified on proof of mistake. Such an account is only prima facie evidence of its correctness and may be impeached by clear, precise and satisfactory evidence either of unfairness or mistake.
    Argued April 9, 1906.
    Appeal, No. 6, April. T., 1906, by defendant, from judgment of C. P. No. 3, .Allegheny Co., Aug. T., 1903, No. 369, on verdict for plaintiff in case of Allegheny County Light Company v. Henry J. Thomas.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Assumpsit for electric light. Before Evans, J.

      The court charged as follows:
    The plaintiff brings this action to recover a balance, which, it alleges, is due for electric light furnished by it to the defendant. The circumstances, as alleged by the plaintiff, of the contraction and nonpayment of this bill arose through a mistake on the part of the bookkeeper of the plaintiff company in failing to designate the meter which registered the amount of electricity furnished to the defendant, as what is known by them as a constant three meter; that is, a meter which registered just one-third of the amount of electricity consumed; and for several months, it is claimed by the plaintiff, this mistake resulted in sending to the defendant a' bill for just one-third of the electricity which he used; and it is to recover for the other two-thirds that this suit is brought.
    [If that be the fact, if through a mistake of the plaintiff, or one of its employees, an honest mistake, or careless mistake, (all mistakes are careless upon the part of someone) this meter was not read properly, and proper bills were not sent to the defendant, then the defendant is liable to pay for the electricity that he got. There is no difference between this case and the case of a man who has given three watches and by mistake only charges for one, so far as the legal effect of it is concerned; he is liable for the other two watches if he keeps them and uses them. So in this case — if the defendant got three times as much electricity as be paid for, he is liable for the balance, and your verdict ought to be for the plaintiff for the full amount of its claim.
    That is the only question of fact involved in this case. So far as the questions of law are concerned, the court assumes all responsibility for them, and if we have made a mistake we will correct it. The only thing for you to do is to determine the question whether this electricity was furnished. The evidence is undisputed. The defendant has offered no testimony upon that subject at all; and I want to call your attention to the fact that he is not quite so helpless in this case as has been suggested. True, he cannot read this meter, he cannot tell whether it is a constant three meter or what kind of a meter it is. Probably 1 could not. I am certain I could not; and possibly none of the jury could; but there are experts in the city whom he could have employed to read this meter, to examine this meter and say whether it was such as the plaintiff alleges it is ; and he was not so helpless as not to be able to give us the facts in the case as to what kind of a meter this was, and whether it registered one-third of the amount of electricity that passed through it or not. I simply suggest that to you in connection with the remarks to the effect that the defendant was helpless and could not furnish any testimony.
    The question then, let me suggest again, is simply one of fact, and that fact, so far as the evidence is concerned, is undisputed, as to whether this plaintiff furnished the electricity which it claimed it did. If it did, then it is entitled to be paid for it. If it did not, then it is not entitled to be paid.]
    Verdict and judgment for plaintiff for 1618.66. Defendant appealed.

      Error assigned was portion of charge as above, quoting it.

      Thomas M. Brown, for appellant.
    — The general rule is, that a mistake will not be relieved against if it is the result of the party’s own negligence : Electric Light Co. v. Butler County Poor Dist., 21 Pa. Superior Ct. 95; Pottsville Lumber Co. v. Wells, 157 Pa. 5; Breisch v. Coxe, 81 Pa. 336.
    In St. John Gas Light Co. v. Clerke, 17 N. Bruns. (1 Pugsley & Burbridge), 307, it was held that the indication or reading of a gas meter tested and read as required by an act of the legislature is conclusive upon the parties.

      David A. Reed, with him Reed, Smith, Shaw Beal, for appellee.
    — It is settled law in Pennsylvania that an account stated may always be opened or falsified on proof of fraud, Shillingford v. Good, 95 Pa. 25; or of mistake, Teller v. Sommer, 132 Pa. 33; Rehill v. McTague, 114 Pa. 82; Shillingford v. Good, 95 Pa. 25; Standard Oil Co. v. Van Etten, 107 U. S. 325 (1 Sup. Ct. Repr. 178); Perkins v. Hart, 24 U. S. 237; Conville v. Shook, 144 N. Y. 686 (39 N.E. Repr. 405); Lockwood v. Thorne, 18 N. Y. 285; Eddie v. Eddie, 61 Ill. 134.
    But it is unnecessary that a mistake should be mutual to justify the falsification or surcharging of an account stated: Lockwood v. Thorne, 18 N. Y. 285 ; Conville v. Shook, 144 N. Y. 686 (39 N. E. Repr. 405) ; Sedgwick v. Macy, 49 N. Y. Supp. 154; Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615.
    May 14, 1906 :
   Opinion by

Henderson J.,

By an agreement in writing the plaintiff undertook to furnish electricity to the defendant and the latter to pay therefor the price fixed in the contract. For the purpose of determining the amount of electricity used it was agreed that a Watt-meter should be installed and that all bills should be calculated upon the reading of the meter, such reading to be final and conclusive. It is not alleged by the defendant that the quantity of electricity charged for was not consumed by him. -His defense is that monthly statements were made to him, from time to time, according to which he made payment; that such settlements constituted accounts stated and that they are conclusive between the parties. This defense raises the only question presented on the appeal. The plaintiff c]aimed that, while it was true a settlement was made from time to time, a mistake occurred in each of the settlements because of an error of an accountant of the plaintiff in entering the proper charge against the defendant. It appeared from the evidence that the meter used on the premises of the defendant was what is known as a constant 3 and that this style of meter registered only one-third of the amount of electricity passing through it, the practice being, for technical reasons not important for the purposes of this opinion, to measure the electric current where a large amount of electricity is consumed, by an apparatus indicating a determinate fraction of the whole amount. The plaintiff’s accountant overlooked the fact that the meter was a constant 3 and made out the defendant’s bills for one-third only of the amount which should have been charged against him. The plaintiff, while conceding that the transactions from month to month between it and the defendant amounted to an account stated, contends that the settlements made are not conclusive upon it, but that a mistake may be shown. It is well settled in this state, both at law and in equity, that a stated account may be opened or falsified on proof of mistake. Such an account is only prima facie evidence of its correctness and may be impeached by clear, precise and satisfactory evidence either of unfairness or mistake. Relief will be granted both at law and in equity as the circumstances may require by setting aside the settlement or permitting the party to surcharge or falsify: 2 Pomeroy’s Equity, sec. 871; Shillingford v. Good, 95 Pa. 25; Teller v. Sommer, 132 Pa. 33; Conville v. Shook, 144 N. Y. 686 (39 N. E. Repr. 405) ; Perkins v. Hart, 24 U. S. 237. The statement of an account does not work an estoppel. It is prima facie an accurate showing of the standing of the parties as to a particular matter, but it has never been held to be so conclusive that one is bound to an account shown to be unjust or fraudulent.

The conclusiveness of the readings of the meter provided for in the contract has reference to the indication which the meter itself gave and not to the interpretation which a careless or inexperienced employee might give to the reading. If the meter showed that the defendant consumed the amount of electricity now alleged by the plaintiff the latter’s right is unquestionable.

It is not necessary that the mistake be mutual. The question is, was the account correct? Nor is the plaintiff affected by the negligent act of its servant under such circumstances, as was shown in Girard Trust Co. v. Plarrington, 23 Pa. Superior Ct. 615. The case presented is not that of a loss to fall upon one of two innocent persons. There has not been any loss, on the facts as found by the jury. The defendant got what he contracted for and is only charged for what he got at the price which-he agreed to pay. It appears from the evidence that the bills presented to the- defendant contained a gross error as to the amount of electricity consumed. The accuracy of the plaintiff’s account as now presented is not contended against and no reason has been shown why the defendant should be relieved from the payment of money the consideration for which he has had and. enjoyed.

The judgment is affirmed.