text:
    Fraser, Appellant, v. Pittsburg.

      Road, law — Appeal from, viewers — Report of viewers — Evidence.
    1. If a party whose property is assessed for benefits to pay, exclusively, costs and expenses of the construction of an improvement, desires to raise a question as to the legal liability of his property for assessment, or whether a wrong rule has been adopted by the viewers in apportioning the charge, he may be heard on exceptions by the court and by appeal to the appropriate appellate court, but he has no right to a jury trial upon such questions.
    2. On the trial of an appeal from the award of a road jury, the report of the viewers is not admissible to show the total cost of the improvement in order that the inference may be drawn as to what proportion was charged against the property in question per foot front, where the property in question has been assessed only for its proportionate share of the costs and expenses of the improvement.
    Argued April 27, 1909.
    Appeal, No. 153, April T., 1909, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1905, No. 186, on verdict for defendant in case of E. M. Fraser v. City of Pittsburg.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from report of jury of view.
    At the trial the plaintiff made the following offer:
    We offer the viewers’ report to show what the total cost of the improvement on that alley was and the number of feet between St. Clair street and Mellon street in order that the inference may be drawn as to what proportion was charged against the property per foot front.
    Objected to as incompetent and irrelevant, the question of the relative amount of assessments being a question which cannot be raised on appeal. Objection sustained. To which ruling of the court counsel for plaintiff excepted. Exceptions allowed and bill sealed. [1]
    October 11, 1909:
    Counsel for plaintiff proposes to prove by the viewers’ report that there was a reduction made in the assessment at the two corners of St. Clair street extending back fifty feet on James street, and that the entire cost of the improvement on James street from St. Clair to Mellon street was assessed upon the inside properties abutting on James street.
    Objected to, first, as contrary to all the facts and entirely opposite to what the viewers did, and secondly, as incompetent and irrelevant in this proceeding. Objection sustained. To which rule of the court counsel for plaintiff excepted. Exceptions allowed and bill sealed. [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1,2) ruling on evidence, quoting the bill of exceptions.

      W. K. Jennings, with him D. C. Jennings, for appellant.

      C. K. Robinson, with him C. A. O’Brien, for appellee, cited: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413; Carson v. Allegheny City, 213 Pa. 537.
   Opinion by

Porter, J.,

The city graded, paved and curbed James alley, a distance of one square, from St. Clair street to Mellon street, both of which were improved streets. Viewers were appointed to assess the damages and benefits resulting from this improvement, under the provisions of the Act of May 16, 1891, P. L. 75, as supplemented and amended by later legislation. The viewers filed a report finding the amount of the costs and expenses of the improvement and making assessments, to pay such costs and expenses, upon abutting properties, including that of the appellant. The report made no award of damages and no property was assessed to pay damages. Mrs. Fraser appealed from the report of viewers and demanded a jury trial, in said appeal asserting that her property had been damaged by the change of grade. An issue was framed to try said appeal, which resulted in a verdict in favor of the city. The assignments of error raise but a single question, Was the report of viewers admissible in evidence at the trial, in the court below, for the purposes for which it was offered by this appellant?

That the report of viewers is not generally admissible in evidence, upon the trial of an appeal from that report, is so well settled as to render citation of authority unnecessary; that in fact is conceded by the learned counsel for the appellant. The Act of April 2, 1903, P. L. 124, amending the act of 1891, expressly provides that the report of viewers when confirmed “shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement;” and gives, as did the act of 1891, the right of appeal to one whose property has been taken, injured or destroyed, and extends the right to one who is assessed for benefits to pay damages for property taken. This act is constitutional, and if a party whose property is assessed for benefits to pay, exclusively, costs and expenses of the construction of an improvement, desires to raise a question as to the legal liability of his property for assessment, or whether a wrong rule has been adopted by the viewers in apportioning the charge, he may be heard on exceptions by the court and by appeal to the appropriate appellate court, but he has no right to a jury trial upon such questions: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413; Murdoch v. Pittsburg, 223 Pa. 280. When a report of viewers does not find any property to have been damaged and does not assess any property to pay damages, an appeal and demand for a jury trial which does not expressly state that the property of the owner who attempts to appeal was in fact damaged by the improvement, but simply asserts that the viewers made a mistake in assessing the benefits to pay the costs and expenses of the improvement, the appeal should, upon motion, be stricken off by the court: Seventh Street Sewer, 35 Pa. Superior Ct. 484. The act of 1903 provides that: “Upon the trial of any such appeal in court, the report of viewers, as finally approved, confirmed, modified or changed by the court, shall be prima facie 'evidence of the benefits as therein mentioned.” It will be observed that it is not the report of viewers which is made evidence, for this limited purpose, but the final decree of the court approving, confirming or modifying that report. The report, as confirmed, was at the trial in the court below offered in evidence, for the purpose expressly authorized by this statute. The appellant subsequently offered in evidence the report of viewers stating that it was offered “to show what the total cost of the improvement on this alley was, and the number of feet between St. Clair street and Mellon street in order that an inference may be drawn as to what proportion was charged against this property per foot front.” This offer was objected to as incompetent and irrelevant, the question of the relative amount of assessments being a question which cannot be raised on appeal. The objection was sustained, which ruling is the subject of the first specification of error. The appellant then renewed the offer of the report of viewers stating that it was for the purpose of showing “that there was a reduction made in the assessment at the two corners of St. Clair Street extending back fifty feet on James Street, and on the two corners of Mellon Street, extending back fifty feet on James Street, and that the entire cost of the improvement on James Street, from St. Clair Street to Mellon Street, was assessed upon inside properties abutting upon James Street.” . This offer was objected to, “first, as contrary to all the facts and entirely opposite of what the viewers did, and secondly, as incompetent and irrelevant in this proceeding.” The objection was again sustained, and this ruling is the subject of the second specification of error.

These offers of evidence were properly rejected by the court below, for the following reasons: (1) The report of viewers was not admissible generally, and the effect of the act of 1903 was only to make it admissible for the specific purpose in the statute designated; (2) when the plaintiff appealed and demanded a jury trial, under the conditions permitted by the act of 1903, the only question to be determined by the trial was the effect of the improvement upon the market value of her property. That was the test by which the jury must be governed, and by which the admissibility of any evidence offered must be determined: Dawson v. Pittsburg, 159 Pa. 317. To the determination of that question the amount of the benefits which had been assessed upon other properties was entirely irrelevant and immaterial. The evidence as to the amount which the improvement had cost the city and as to the part of that sum which the owners of other property had been required to pay, could not have given the jury any information whatever as to the value of plaintiff’s property either before or after the improvement: Carson v. Allegheny City, 213 Pa. 537. (3) The declared purpose of both of these offers was, in effect, to show that the viewers, in making the assessment for the grading, paving and curbing of this alley, had not made it according to the “foot front rule.” The statutes under which this improvement was made and which authorized the assessment required that the assessment should be made upon the benefits peculiar to the properties, and did not warrant an assessment according to the “foot front rule.” There is no legislation which authorizes the city of Pittsburg to assess property for benefits resulting from the grading, paving and curbing of a street, according to the “foot front rule.” The viewers appointed to assess property upon the basis of the benefits peculiar to it resulting from an improvement may, when the situation of all the properties with regard to the improvement is the same, be warranted in apportioning the assessments according to the frontage, but the basis of the assessments is still the benefits peculiar to the property. In the grading of a street other elements, in addition to frontage, must also be considered, such as the depth of the property, its elevation above or depression below the grade established by the improvement, and the means of access which it had previously enjoyed over already improved highways. The effect of the admission of the evidence offered, followed by permitting the appellant to try the issue upon the theory which she advanced, would have been to require the jury to retry every assessment made by the viewers upon all the property along the line of the entire improvement, and would have obscured the issue to which the trial in such a case ought properly to be confined.

The judgment is affirmed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    W. H. Keech Company v. O’Herron, Appellant.

      Judgment — Confession of judgment — Amount of damages — Assessment of damages.

    1. Where a judgment under a warrant of attorney contained in a bond, is entered, not for the amount of the penalty, but for the amount of the real debt, such entry of judgment is irregular, inasmuch as it should have been entered in the amount of the penalty of the bond to be released upon the payment of the amount actually due; but if the record shows on its face the amount of the penalty, and the amount owing is not denied, and there is no other defense, the court will permit the record to be amended so as to conform to the proper practice.
    2. Where a judgment is entered under a warrant of attorney contained in a bond in which a specified amount of money is stated as a penalty, the plaintiff may issue execution without a scire facias on the judgment, or a motion to the court for leave.
    Argued April 29, 1909.
    Appeal, No. 198, April T., 1909, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1909, No. 233, discharging rule to strike off judgment and set aside execution in case of W. H. Keech Company v. Michael O’Herron.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment and set aside execution.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order discharging the rule.

      M. J. Hosack, of Hosack, Knox & Hosack, for appellant.
    The well-established practice is to enter the bond for the full amount for which the obligors bind themselves, and experienced practitioners usually observe that well-known practice: Bennett v. Haley, 142 Pa. 253.

      F. C. McGirr, of Marron & McGirr, for appellee.
    If this judgment was irregularly entered it may be amended in this court on appeal and the proper judgment entered: Carman v. Noble, 9 Pa. 366.

      October 11, 1909:
    The judgment was regularly entered in this case. It was by virtue of a warrant of attorney and therefore did not come within the statutes 8 and 9, William III, chap. 11, sec. 8, or of our Act of June 14, 1836, P. L. 638, Stewart’s Purdon, 471: Skidmore v. Bradford, 4 Pa. 296; Reynolds v. Lowry, 6 Pa. 465; Bank of Chester v. Ralston, 7 Pa. 482: Harger v. Washington County, 12 Pa. 251; Chambers v. Harger, 18 Pa. 15; McCann v. Farley, 26 Pa. 173; Jones v. Dilworth, 63 Pa. 447.
   Opinion by

Porter, J.,

Judgment was entered against the appellant and another by confession under a warrant of attorney contained in a bond. The bond was in the penal sum of $500 and the warrant therein contained authorized the confession of judgment “after one or more declarations filed,” in favor of the plaintiff, for the amount of the penalty, with “waiver of inquisition and condemnation of any property that may be levied upon by virtue of any execution which may issue forthwith upon failure to comply with the conditions hereof.” The plaintiff filed a declaration, or statement, setting forth the execution of the bond, the amount of the penalty thereof and the condition of the bond, which was that one Edwards, an employee of the plaintiff, should pay over to the plaintiff upon demand, any and all moneys which he received in the course of his employment, and, further, averred that Edwards had received from certain persons named, respectively, specific sums of money, aggregating $361.87, and averred damages in the amount of the penalty of the bond, that is, $500. A copy of the bond was to the statement attached. With the statement was filed a confession of judgment by a duly qualified attorney appearing on behalf of the defendants, by the defendants, and “in favor of the plaintiff in the sum of $415.53, liquidated as follows:

Amount of bond ...................... $500.00 '

Due on same as above .................. $361.87

Interest from January 10, 1907........... 33.88

Attorney’s commissions 5%----:......... 19.78

Total $415.53

With costs of suit release of all errors and without stay of execution,” and with the other incidents of said judgment authorized by the warrant. This appellant subsequently presented his petition to the court averring that the judgment was irregularly entered, in that it was not for the amount of the penalty of the bond, but for the amount at which the real debt had been liquidated, and praying that the judgment be set aside, that the assessment of damages be stricken off and an execution which had issued on the judgment be set aside. The petition of the appellant did not state, nor was it even hinted in the court below or here that he had any defense upon the merits. The court below granted a rule on the plaintiff to show cause why the relief which the appellant sought should not be granted, which rule it subsequently discharged and the defendant appeals.

That the judgment under the warrant of attorney should have been entered in the amount of the penalty of the bond, to be released upon payment of the amount actually owing under the condition of the instrument, is too well settled to require discussion. The confession of judgment was, in terms, “in favor of the plaintiff in the sum of $415.53, liquidated as follows.” The judgment thus appears to be liquidated in 'that amount, and yet when the attorney who confessed judgment' proceeded to liquidate it he stated, as part of that liquidation, that the amount of the bond was $500. There thus appeared within the confession of judgment itself a statement of all the facts which clearly indicated what the formal judgment ought to be. This also appeared in the statement of the plaintiff and the copy of the bond to which the confession of judgment was attached. There thus appeared upon the record everything necessary to determine what the amount of the judgment and the form thereof ought to be, so that it is not necessary to go outside of the record to find the materials which would warrant an amendment of the record, if an amendment is allowable. There was in this case no failure to comply with any condition precedent in order to authorize the entry of a judgment upon the warrant. The statement filed by the plaintiff clearly set forth the amount for which the appellant was legally liable under the condition of the bond, and under the confession of judgment as entered the defendant could not be called upon to pay any amount in excess of his liability upon his obligation. The judgment entered was irregular, but it was not void; the defect was purely formal. The amount was not in excess of the liability of the defendant, the defect in the judgment was not that it failed to show the amount for which the defendant was liable upon execution, but, rather, that it failed to disclose the full amount for which he might have become liable. The learned counsel for the appellee admit that they made-a blunder in failing to have the judgment confessed for the full amount of the penalty in the bond and they have moved this court for leave to amend the record, by making the judgment against the defendant for the amount of the penalty of the bond, to be released upon payment of the amount actually due, as now liquidated upon the record. There being no suggestion of a defense to the payment of this judgment upon the merits, we are convinced that the allowance of this amendment would involve no injustice to this appellant, and that the amendment is one within the power of this court to permit: Easton v. Worthington, 5 S. & R. 130; Carman v. Noble, 9 Pa. 366. We will, therefore, consider the amendment as made.

The appellant contends, under the second branch of his rule, which sought to strike down the liquidation of damages contained in the confession of judgment and to deprive the plaintiff of any right to execution upon his judgment, that upon such a bond as that which contained the warrant upon which this judgment was confessed, all that a plaintiff can do is enter a cautionary or interlocutory judgment, for the purpose of a lien, and that before he can become entitled to execution he must issue a scire facias or writ of inquiry, and have the damages ascertained. This contention may be correct when the. bond is given to secure the performance of a collateral condition, for the breach of which the measure of damages is contingent and uncertain, but it can have no application when the damages arise from the failure of a party to pay over specific sums of money. In such a case, the measure of damages is neither contingent nor uncertain. That a judgment entered on a bond with warrant of attorney is not within the statutes 8 and 9, William 3, ch. 11, sec. 8, nor the act of June 14,1836, must be accepted as definitely settled: McCann v. Farley, 26 Pa. 173; Jones v. Dilworth, 63 Pa. 447. The plaintiff in such a judgment may issue execution without a scire facias on the judgment, or a motion to the court for leave; and the remedy of the defendant is an appeal to the court, which under its equitable power overpaid judgment can amply protect him against injustice.

The order of the court below is affirmed and the appeal dismissed; and the amendment prayed for by the appellee is allowed.


author: Beaver, J.,

text:
    Kerchner’s Estate.

      Wills — Construction of will — Revival of prior will.

    Where a woman who has made two wills, burns the second will at the same time declaring “the other last will shall count,” the burning of the second will and the declaration made at the time constitutes a valid revival of the first will, although the republication is by parol.
    Argued May 3, 1909.
    Appeal, No. 57, April T., 1909, by Caroline Doell and Henry Werner, from decree of O. C. Cambria Co. June T., 1907, No. 7,606, refusing issue devisavit vel non in Estate of Wilhelmina Kerchner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to show cause why an issue devisavit vel non should not be awarded. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error asigned was decree refusing the issue.

      D. P. Weimer, with him W. David Lloyd, for appellant.
    There was no valid republication of the first will: Crawford v. Schooley, 217 Pa. 429; Lappe’s Est., 52 Pitts. L. J. 157; Fransen’s Will, 26 Pa. 202; Shoenberger v. Jack, 26 Pa. 208; Neff’s App., 48 Pa. 501; Rankin’s Est., 4 W. N. C..203; Rankin v. Rankin, 5 W. N. C. 127.
    October 11, 1909:

      Harry Doerr, with him William Williams and P. A. Rose, for appellees.
    The rule that the cancellation and destruction by the testator of a later will, revives a former will if it be retained by the testator until his death uncanceled, is the well-settled law of Pennsylvania as well as at common law: Flintham v. Bradford, 10 Pa. 82; Lawson v. Morrison, 2 Dallas, 286; Boudinot v. Bradford, 2 Dallas, 266; Stetson v. Stetson, 61 L. R. A. 258; Bates v. Hacking, 14 L. R. A. (N. S.) 937; Wallace v. Blair, 1 Grant, 75; Stephenson’s Est., 6 Pa. C. C. Rep. 628; Englert v. Englert, 198 Pa. 326; Lenhart’s Est., 199 Pa. 618.
   Opinion by

Beaver, J.,

The court below found as a fact, upon testimony practically undisputed, that the decedent destroyed, by burning, a will executed by her in February, 1905, and that, by reason of such destruction and the declarations made at the time, it was her intention to revive and continue the provisions of a previous will dated in 1902. Letters testamentary having been issued to the person named in the will of 1902 as executor, the court, upon petition and rule granted to show cause, refused to revoke the said letters and to grant an issue devisavit vel non.

The appellant states the questions raised by the several assignments of error as follows:

“1. Where, in an appeal from the probate of a will by the Register, the Court has found as a fact that the decedent executed a will subsequent to the will probated, is not an issue devisavit vel non a matter of right?

“2. Where a will has been revoked by the execution of a subsequent will, can the first will be republished by parol?”

Although this is not a full and correct statement of all the questions raised, it suggests the effect of the decree of the court below in discharging the rule to show cause why the letters testamentary should not be revoked and an issue devisavit vel non awarded.

The manner in which a testator can destroy the effect of- a will concerning real estate is clearly provided in sec. 13 of the Act of April 8, 1833, P. L. 249, as follows: “Section 13. That no will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same executed, and proved in the same manner as is hereinbefore provided, or by burning, cancelling, or obliterating or destroying the same by the testator himself, or by some one in his presence, and by his express direction.”

In this case the court finds, based upon abundant testimony, that the testatrix “did execute a will on February 5, 1905, and we so find as a fact; but we find as an additional fact that she voluntarily destroyed said will,” the destruction being by burning, and, although it is shown that she could not read English and, therefore, could not have known what she burned, it is plainly apparent from the testimony that the will was given to her as her latest will by her son, that she placed it upon the fire where it was consumed, with that information, and declared at the time that “The other last will shall count.”

The court below held that the destruction of the last will “revived the will dated August 29, 1902, which, when presented for probate, was the last will and testament of Wib helmina Kerchner, deceased, and the action of the Register in admitting said will to probate was legal and proper.”

The court further finds, in which we fully agree, that “There is no evidence to support the allegation that said will was procured by undue influence and fraud.”

The main question in the case, is whether or not the act of the testator in destroying the will of February, 1905, together with the declarations made at the time, revived the former will of 1902.

In 1 Redfield on Wills, sec. 308, it is said: “The general rule seems to be firmly established from an early day, that a later will revoked, will not prevent an earlier and inconsistent one from remaining in force.” The reference is to Goodright v. Glazier, 4 Burr. 2512.

In Pennsylvania, the case of Flintham v. Bradford, 10 Pa. 82, would seem, on the surface, to be in point. As stated in the syllabus, “A testator died in 1838, leaving a will dated in' 1821, with an unsigned addition; a will dated in 1824, which had been cancelled at an uncertain time, and which was inconsistent with the will of 1821; and a will dated in 1835, which did not purport to pass real estate. Held, that the will of 1821, so far as it passed real estate, then held by testator, was revived by the cancellation of the will of 1824.” This case goes to the extent of holding, at least inferentially, so far as the will involved therein is concerned, that the cancellation of a second will revives a former will by implication, and leaves the former will in full force, if it be retained by the testator until his death uncanceled. So in Wallace v. Blair et al., 1 Grant, 75, cited by the appellee, decided in 1854, it was held that “A republication of a will may be proved by parol.” In the former case, however, the will was dated in 1821 and in the latter in 1828, both prior to the act of 1833, and a careful reading of both cases leads to the inevitable conclusion that the decisions in both were based upon this fact.

Jack v. Shoenberger, 22 Pa. 416, was twice in the Supreme Court. When heard first, the opinion in the case was written by Mr. Chief Justice Gibson, but was marked “not to be reported.” In the opinion which is published in connection with Fransen’s Will, 26 Pa. 202, it appears the case was reversed, because “The testator died after the act of 1833, and leaving his will within the purview of it; and not only was proof of his declarations erroneously admitted, but the scope of the charge tended to an erroneous conclusion.” Upon the retrial, the court below having given full effect to the opinion of the Supreme Court, it was again reversed upon appeal, because, when it was argued the second time, the question being as to whether or not after-acquired real estate of the testator passed by his will, which was alleged to have been republished by parol, the Supreme Court held “that the after-acquired land passed under the will, whether the will was within the purview of the act of 1833 or not. If within the act, parol republication was unnecessary — the 10th section of that act would pass the land; if not within it, parol republication of the will passed the land,”

In Fransen’s Will, supra, Mr. Justice Woodward, in writing the opinion of the court, whose decision was directly contrary to the former decision in Jack v. Shoenberger, in which Mr. Chief Justice Gibson had written the opinion, says: “But for myself I wish to record a strong doubt whether there can be parol republication of a will in Pennsylvania, and I am the more anxious to do this since I find learned counsel interpreting my opinion in Jack v. Shoenberger, 22 Pa., 416, to teach a contrary doctrine.” But the question was not there decided, for the reason that the court held it unnecessary to decide it.

In Neff’s Appeal, 48 Pa. 501, it was decided that, “A codicil will operate to revive or republish a will, and revoke another made before the codicil and after the will to which it is annexed, unless its effect to do so is negatived by the contents of the codicil itself.” Mr. Justice Strong, in his opinion, says: “True, a republication by parol is no longer possible, but that is because of other provisions of the act which define the mode in which alone a will may be made. They have no bearing upon the question now under discussion, for republication by a codicil is not parol republication.” The question of parol republication was, therefore, not before the court, and, inasmuch as the will was sustained on other grounds entirely, this declaration of the opinion writer is a mere dictum.

These cases are cited to us by the appellant as authority for the proposition that republication by parol is impossible in Pennsylvania, and the opinion of Chief Justice Gibson and the dicta of Mr. Justice Woodward (George W.) and Mr. Justice Strong are entitled to such weight that, if there were not later authority on the subject, the inducement to follow these precedents would be very great, if not compelling.

We find, however, upon examination, that as late as the case of Forquer’s Estate, 216 Pa. 331, the contrary doctrine has been held, in which the Supreme Court affirmed the case “on the opinion of the court below.” The question involved in this case was whether or not the will was contingent, the language thereof being as follows:

“‘I intend starting tomorrow morning to Montana to see my brother. Knowing the uncertainty and risk of a journey, know all.persons that I do hereby will and bequeath’ my real and personal property to my wife. 'Also all judgments owned by me and notes due me are hereby bequeathed to my said wife. . . . And, should anything befall me while away, or that I should die, then in that event all my estate, money, notes, property of every nature and description, both real and personal, are hereby assigned, conveyed and set over to my wife for her sole benefit.’ Held, that the will was not merely contingent upon testator’s death on his journey, but continued operative after his safe return and his death thereafter.

“ In such a case the construction of the will made by the court is further sustained by the fact that the testator a few days before his death republished the will in the presence of his wife and another person.”

The court below, in its opinion, upon considering at length the' question as to whether or not the will was contingent, decided that it was not, but says further: “This does not, however, exclude evidence of the republication of a will already made, but which has been rendered inoperative, revoked or superseded by some subsequent will or circumstance. And such republication may be by parol.” After quoting authorities, principally those herein referred to, the court says: “Having arrived at the conclusion that the will under consideration was absolute in character and not contingent, and there being no evidence of its subsequent revocation, it would seem unnecessary to determine the contention of proponent’s counsel that the testator, a few days before his death, in the presence of his wife and another, did republish his will. The evidence, however, of what took place at that time is uncontradicted and is sufficient to establish a republication of the will, and the will so republished is, we think, relieved of the contingency expressed therein, the event having been passed. This would seem not only reasonable but to be supported by authority. In Schouler on Wills, sec. 287, it is said: 'But where a will, written as though conditional upon a long journey, is re-executed and duly witnessed after the testator’s safe return, the condition ceases, and the will may fully operate by remaining uncancelled.’ We see no reason why this rule should not govern where, instead of a re-execution of the will, there has been a republication of it, supported by the necessary evidence.”

This having been practically adopted by the Supreme Court as the law of the case, we are bound by it, and, in accordance therewith, must hold that the parol republication of her former will by the testatrix upon the destruction of her later will by burning, as required in the act of 1833, as found by the court below, re-established and restored the former will, which was duly admitted to probate and letters testamentary issued thereon.

The decree of the court below, discharging the rule to show cause why the letters testamentary issued upon the will of 1902 should not be revoked and an issue devisavit vel non granted, is affirmed, and the appeal dismissed at the costs of the appellant.


author: Rice, P. J.,

text:
    Stoner v. Phillipi, Appellant.

      Corporations — Foreign corporations — Contract—Doing business — Registration — Individual liability.

    1. Where the officers of a foreign, corporation enter into a contract in Pennsylvania for the purchase of a machine to be manufactured, and the corporation is registered a few days after the contract was made, and long before the machine was completed and delivered, and it appears that the company had done no other business in Pennsylvania and that the manufacturers knew that the persons with whom they dealt represented the corporation, the officers making the contract cannot be held individually liable for the price of the machine. v
    2. Isolated transactions, commercial or otherwise, taking place between a foreign corporation domiciled in one state and a citizen of another state are not a doing or carrying on of business by the foreign corporation within the latter state.
    Argued April 30, 1909.
    Appeal, No. 48, April T., 1909, by defendants, from judgment of C. P. No. 4, Allegheny Co., Third Term 1907, No. 668, on verdict for plaintiffs in case of E.. C. Stoner and Josiah C. Thaw, doing business as Stoner, Thaw &. Company, Limited, v. B. N. Phillipi, Marshall Henderson and E. L. Sohns.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover the price of a machine. Before Swearingen, P. J.
    The facts appear by the opinion of the Superior Court.
    The court charged in part as follows:
    [The defense as to the making of the contract consists in this: The defendants introduced testimony to show that a corporation was organized, of which these three defendants were stockholders and directors; and that that corporation was organized under the laws of the state of New Jersey, which, for the purpose of the laws of Pennsylvania, is a foreign corporation. The corporation was started some time in the month of April. According to the testimony of the defendants, Mr. Sohns was authorized to make a contract for the building of a machine of this character, and that all his negotiations with the plaintiff and that all the negotiation of the defendants with the plaintiff were in pursuance of that arrangement. In other words, that he was acting and that they were acting at the instance of this corporation, known as the Pittsburg Refreshment Machine Company. And evidence is further introduced, on behalf of defendants, that the corporation was registered in the office of the secretary of the commonwealth of Pennsylvania on June 15, 1906. Now, gentlemen, we have a statute in Pennsylvania which requires that a foreign corporation shall not do business in Pennsylvania until it shall have established an office or offices, and appointed an agent for the transaction of its business in this state; and, that it shall not be lawful for a corporation to do business in this commonwealth until it shall have filed in the office of the secretary of the commonwealth, articles of incorporation, which means the registration of the corporation. So that, under the facts as developed here, the evidence submitted on the part of the defendants themselves, it becomes my duty to say to you that the defense that this contract was made with this corporation is not made out. This corporation, the Pittsburg Refreshment .Machine Company, being a corporation of New Jersey, and not having registered in the office of the secretary of the commonwealth of Pennsylvania until June 15, and it being admitted that the contract was made prior to that date, then, I say to you, that the corporation had no authority to do business in the state of Pennsylvania. And if these defendants were acting for that corporation in making a contract prior to that time, then they became responsible in this regard for the contract. That is the law, as we understand it, and if we have made a mistake in our interpretation of the law, there is a method of correcting it.] [7]
    [So that, you will then, gentlemen, under the instructions of the court, find a verdict for the plaintiff if you believe the testimony of . the plaintiff that the contract was made prior to June 15, 1906, and according to the testimony of Mr. Sohns, one of the defendants, that is the fact.] [8]
    Plaintiff presented these points:
    1, That if the jury find from the evidence that the machine delivered by the plaintiff was in accordance with the order of defendants and that the price charged therefor was a fair and reasonable market price at the time of delivery, the plaintiffs are entitled to recover against any of the defendants who ordered said machine, either individually or as agents or representatives of the Pittsburg Refreshment Machine Company prior to June 15,1906. Answer: Affirmed. [1]
    2. If the defendants, or any of them, acted as agents or representatives of the Pittsburg Refreshment Machine Company, and as such agents or representatives, ordered the machine in question from the plaintiffs, they are individually liable to plaintiffs for the value thereof, if such order was given prior to June 15, 1906. Answer: Affirmed. [2]
    Defendant presented these points:
    1. That if .you find that the defendants were members, incorporators, stockholders and directors of the Pittsburg Refreshment Machine Company and that the Pittsburg Refreshment Machine Company made the contract with the plaintiff for the construction of the machine furnished by the plaintiff, and that the plaintiff knew that said Pittsburg Refreshment Machine Company was a corporation, then you will find a verdict for the defendants. Answer: Refused. [3]
    October 11, 1909:
    2. If you find that the plaintiff manufactured the machine in question for the Pittsburg Refreshment Machine Company and gave credit to the Pittsburg Refreshment Machine Company knowing that it was a corporation, then you will find a verdict for the defendants. Answer: Refused. [4]
    3. If you find that the original contract was made with E. L. Sohns, acting as the agent of the Pittsburg Refreshment Machine Company, by the plaintiff, and delivered to them after they had registered as a corporation in this state, then you will find a verdict for the defendants. Answer: Refused. [5]
    4. That under all the evidence you will find a verdict for the defendants. Answer: Refused. [6]
    Verdict and judgment for plaintiff for $253.70. Defendants appealed.

      Errors assigned were (1-8) above instructions, quoting them.

      H. Fred Mercer, for appellants.
    Having dealt with the corporation as a corporation, and knowing that it was a corporation, the plaintiff cannot impeach its charter or its contractual ability: Johnston v. Elizabeth Building & Loan Assn., 104 Pa. 394; Spahr v. Farmers’ Bank, 94 Pa. 429; Bond v. Stoughton, 26 Pa. Superior Ct. 483; Stephenson v. Dodson, 36 Pa. Superior Pt. 343.

      W. W. Stoner, with him M. W. Stoner, for appellee,
    cited: Lasher v. Stimson, 145 Pa. 30.
   Opinion by

Rice, P. J.,

Judging from the plaintiffs’ statement of claim this action of assumpsit was brought to recover the price of a machine manufactured by the plaintiffs for the defendants in accordance with a plan agreed upon by the parties, and duly delivered to and accepted by the defendants. Evidently anticipating the defense that would be set up, the plaintiffs further alleged in their statement, “that no corporation was ever spoken of, or mentioned to'it as the purchaser or party to the contract of sale; that it relied entirely upon the individual responsibility of the three defendants herein named and that it was induced to manufacture the article sold and to make the sale by favorable reports of the defendants’ financial condition upon inquiry being made.”

The main defense set up in the affidavit of defense and on the trial consisted of a denial that the defendants dealt with the plaintiffs in their individual capacity either in ordering or accepting the machine, and an assertion that they dealt with them only as representatives of the Pittsburg Refreshment Machine Company, a New Jersey corporation, and that the plaintiffs were informed and well knew that they represented said corporation.

Each side of the plain issue of fact presented by the statement of claim and the affidavit of defense was supported by evidence, and if the case had been submitted to the jury with direction to render a verdict in favor of the plaintiffs or of the defendants according as they should determine the issue of fact, the defendants would have no just cause to complain of the charge of the court. It is claimed by the plaintiffs’ counsel that the verdict was based solely upon the jury’s determination of this issue of fact in their favor. It may have been so, but there is no way of determining that it was so. For, as shown by the court’s affirmance of the plaintiffs’ points quoted in the first and second assignments of error, the refusal of the defendants’ points quoted in the third, fourth and fifth assignments, and the portions of the general charge quoted in the seventh and eighth assignments, the jury were instructed, in substance, that even though they should decide the above stated issue of fact in the defendants’ favor, yet if they should find that the defendants were acting for a foreign corporation in making the contract, and that the date of making it was prior to June 15,1906, the date of registration in this commonwealth, they, were liable individually. In view of these instructions it becomes important to refer, more particularly to the version of the transaction given by the defendants. The Pittsburg Refreshment Machine Company was incorporated under the laws of the state of New Jersey on April 30,1906, and was registered in Pennsylvania on June 15, 1906. The three defendants were among the incorporators, stockholders and directors. Sohns was the president, and Phillipi the secretary and treasurer. According to the defendants’ evidence, Sohns was appointed by the board of directors as the company’s agent to ascertain where such machines as the company desired could be made and to make a contract for one. He testified that he had several interviews with Mr. Stoner, who was acting for the plaintiff, and explained to him that the Pittsburg Refreshment Machine Company was a corporation organized for the purpose of putting such machines on the market, and that (without going into unnecessary recitals of the details testified to by him) he contracted with the plaintiffs to construct for the company the machine in question. The contract was made and the .work was begun before June 15. But the machine was not completed until some time in July, when it was delivered to and put in use by the company’s representative at an amusement park in Pittsburg. It is admitted by both parties that no price for the machine was agreed upon, but that it was to be built at regular shop rate for time and labor and ordinary charges for materials. The entry in the plaintiffs’ order book of June 14, 1906, was of an order for a machine “as per instructions” for Pittsburg Refreshment Machine Company. The charges in the plaintiffs’ books of account were entered in that name. The itemized bill for the work and materials, rendered after completion of the machine, had at its head “Pittsburg, July 16, ’06. Sold to Pittsburg Refreshment Machine Company, City,” and this was inclosed and forwarded in a letter addressed “Pittsburg, August 2, 1906, Pittsburg Refreshment Machine Co., D. M. Phillipi, Treasurer, City,” and stating, “We enclose herewith bill for work on refreshment machine ordered by your company.” The plaintiffs’ explanation of this documentary evidence is that they were told by the defendants that they were going to call themselves the Pittsburg Refreshment Machine Company. In view of this explanation, the court would not have been warranted in charging the jury that the plaintiffs knew that the Pittsburg Refreshment Machine Company was a corporation, that Sohns and the other defendants were acting in behalf of that corporation, and not as individuals or a firm, in ordering and accepting the machine, and that the plaintiffs made and delivered the machine upon the order and the credit of the company. But the jury, whose province it was to pass on the credibility of the witnesses, could have found all these facts. Therefore in determining as to the correctness of the instructions complained of in the assignments of error above referred to the case is to be considered as if they had found them.

Thus viewing the case, it differs in several material particulars from Lasher v. Stimson, 145 Pa. 30, upon which the appellees rely. In that case the corporation was carrying on in Pennsylvania the business of manufacturing and selling a certain article, and the contract was made in the course of that business. There is no evidence in the present case that the corporation was carrying on any business in Pennsylvania at or prior to the time the contract was made. It did not appear in that case that the corporation was ever registered in Pennsylvania. Here the corporation was registered within a few days after the order was given, and a considerable time before the work was completed, and the corporation was fully authorized to do business in Pennsylvania at the time the performance of the contract was consummated by delivery of the machine. In that case the plaintiff was not informed that the company was a corporation of the state of New Jersey, or that it was a corporation at all, while in the present case there was ample evidence that the plaintiffs knew, at least, that they were dealing with a corporation. In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts: Yoders v. Amwell Township, 172 Pa. 447. . There is such dissimilarity between this case and Lasher v. Stimpson in respect to facts which are referred to in the opinion in the latter case as entering into the question for decision as makes it impossible to declare that it rules this case. Not every contract entered into in this commonwealth by a foreign corporation before compliance with the provisions of the act of 1874 involves “doing business” within the prohibition of the act. For example, a corporation of one state may send its agents to another to solicit orders for its goods, or contract for the sale thereof, without conforming to the provisions of the act: Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184; Mearshon & Co. v. Pottsville Lumber Co., 187 Pa. 12; Wolff-Dryer Co. v. Bigler, 192 Pa. 466; New Jersey Steel Tube Co. v. Riehl, 9 Pa. Superior Ct. 220. This, it is true, was not a contract for the sale of goods but a contract for the purchase of a single article to be manufactured. But in Commonwealth v. Standard Oil Co., 101 Pa. 119, it was-held that the purchase of crude oil in this state by a foreign corporation and the shipment thereof to other states to be refined did not constitute doing business within the meaning of our tax laws. This case is cited in People’s Bldg., Loan & Sav. Association v. Berlin, 201 Pa. 1, as throwing light upon the legal scope of the words “doing business in this commonwealth” as used in the act of 1874. We call particular attention to the opinion of Justice Paxson at p. 148, and of Judge Simonton at p. 132 of Commonwealth v. Standard Oil Co., 101 Pa. 119. The latter refers to the case of Missouri Furnace Co. v. Cochran, 12 Pitts. L. J. (n. s.) 238, where McKennan, circuit justice, held that purchasing materials here by a foreign corporation was not doing business in the state within the meaning of the act of April 22, 1874. Another point to be noticed is that this was an isolated transaction, and with regard to this subject it is said: “The general conclusion of the courts is that isolated transactions, commercial or otherwise, taking place between a foreign corporation domiciled in one state and a citizen of another state, are not a doing or carrying on of business by the foreign corporation within the latter state:” 19 Cyc. of Law & Pro., p. 1268. In support of this proposition a large number of authorities are cited, and amongst them the Pennsylvania case of Delaware River Quarry, etc., Co. v. Bethlehem, etc., Pass. Ry. Co., 204 Pa. 22, where Justice Fell said: “This act has been liberally construed, and isolated transactions between a foreign corporation and citizens of this state have been held not to come within its prohibition, and only such corporations as have entered this state by their agents and transacted their ordinary business here, have been considered as ‘doing business’ in violation of the act.” Bearing in mind that the corporation in the present case had not entered upon the transaction of business in this commonwealth at the time the contract was made and that before it did so it fully complied with the requirements of the act of 1874, we think it clear that the case comes within the principle thus recognized by the Supreme Court. Therefore it was error to charge that as the contract was made before the date of registration the defendants were liable individually. Indeed, it would have been proper to submit this branch of the case to the jury upon the single issue of fact stated at the outset of this opinion.

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


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    Carothers’s Estate.

      Decedents’ estates — Claim for services — Evidence.
    A claim for $600 allowed by the court below for services at the rate of $100 per year will be reduced by the appellate court to $60.00, where there is some evidence that the decedent agreed to pay for services, but not a salary, and the evidence shows that the only services rendered by the claimant was that once in each of the six years he went to the county seat to pay the decedent’s taxes; that on two occasions he made the same journey to deliver to her counsel a promissory note which she held; that on three occasions he met at the decedent’s house another neighbor and calculated the interest on a note which the decedent held against the latter, and drew a new note for the amount of the obligation; and that on another occasion he collected the sum of $50.00 on account of another note held by the decedent.
    Argued May 11, 1909.
    Appeal, No. 50, April T., 1909, by Nellie McCarrell, from decree of O. C. Beaver Co., Dec. T., 1907, No. 13, sustaining exceptions to auditor’s report in Estate of Mary A. Carothers, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of M. J. Patterson, Esq., auditor. Before Holt, P. J.

      October 11, 1909:
    The opinion of the Superior Court states the facts.

      Errors assigned were in sustaining exceptions to auditor’s report allowing a claim of D. J. Stephens.

      J. L. Ritchey, with him J. Frank Reed, for appellant,
    cited: Graham v. Graham, 34 Pa. 475; Carpenter v. Hays, 153 Pa. 432; Keyser’s App., 23 W. N. C. 201; Peters’s App., 106 Pa. 340; Hughes’ Est., 176 Pa. 387; Keith’s Est., 5 Pa. C. C. Rep. 581; Burk’s Est., 15 Pa. Dist. Rep. 206; Conaughton’s Est., 12 Pa. C. C. Rep. 590.

      D. S. Morrison, of Hice, Morrison, Reader & May, for appellee,
    cited: Sachse’s Est., 16 Phila. 412; Ranninger’s App., 118 Pa. 20; Harrington v. Hickman, 148 Pa. 401; Sourwine v. Clay-pool, 138 Pa. 126; Gordner v. Heffley, 49 Pa. 163.
   Opinion by

Porter, J.,

D. H. Stephens, the appellee, presented a claim against the estate of the decedent for compensation for services alleged to have been rendered the deceased during a period of ten years prior to her death, at the rate of $100 per annum. The auditor disallowed this claim, holding that the evidence was insufficient to establish it. Exceptions were filed to the report of the auditor, which the court below sustained and allowed the claimant the sum of $600, or $100 per year for the last six years of the lifetime of decedent. Nellie McCarrell, the residuary legatee, appeals from this decree.

Mary Carothers, the decedent, and D. H. Stephens, the appellee, were neighbors residing in Frankfort Springs, a small country village in Beaver county. The testatrix was a widow, without children, who owned three farms which she rented to tenants, with whom she personally made settlements. She was possessed of some personal property which consisted principally of notes which she held against her neighbors. The evidence disclosed that Stephens occasionally performed trifling services for her, of a character which is very often rendered by one neighbor in the country to another without thought' of compensation. The appellee, in support of his claim, called four witnesses to prove that he had rendered the services, and the testimony of those witnesses established that during the last six years of the life of the decedent the appellee had occasionally and irregularly performed acts for her in some business transactions. The utmost that can be claimed to have been established by the evidence to have been done by Stephens for the decedent is that, once in each of the six years he made for her a trip from Frankfort Springs to Beaver, the county seat, for the purpose of paying her county taxes; that on two occasions he made the same journey for the purpose of delivering to her counsel a promissory note which she held; that on three occasions he met at the house of the decedent another neighbor and calculated the interest on a note which the decedent held against the latter and drew a new note for the amount of the obligation; and that on another occasion he, at the request of the decedent, asked for and received the sum of 150.00 upon account of another note which the decedent held against a party residing in the village of Frankfort Springs. This is the sum total of the services which the evidence established to have been performed by Mr. Stephens for the decedent, his neighbor, during the last six years of her life.

“The temptation to set up claims against estates of decedents, particularly such decedents as have left no lineal heirs, is very great. It cannot be doubted, that many such claims have been asserted, which never would have been known, had it been possible for the decedent to meet his alleged creditor in a court of justice. . . . Such claims are always dangerous, and when they rest upon parol evidence, they should be strictly scanned:’’ Graham v. Graham’s Executors, 34 Pa. 475; Miller’s Estate, 136 Pa. 239; Carpenter v. Hays, 153 Pa. 432; Hughes’ Estate, 176 Pa. 387; Weaver’s Estate, 182 Pa. 349. The services for which the appellee claimed compensation were of such a character as to require the production of evidence of an express contract of the decedent to pay, or of facts from which the law would imply such a contract. The testimony of John M. Buchanan, Esq., while more full than that of any other witness as to the character of the services performed by the appellee, clearly discloses that so far as the decedent was concerned she did not, at least until the year 1903, consider herself under any legal obligation to pay the appellee for the friendly acts which he had from-time to time performed for her; that she considered his claim as one upon her gratitude and not upon her purse, as was said by Chief Justice Mitchell in Hughes’ Estate, supra. The only evidence in the case which would sustain a finding that there had been an agreement between the parties that the appellee should be paid for such neighborly acts as he performed for the decedent is found in the testimony of William M. Doak, to the effect that, in September, 1903, Stephens called on him and stated that Mrs. Carothers wished him to make a payment on the note which she held against him, that he then paid Stephens the sum of $50.00 on account of the note, taking the receipt of Stephens therefor; that he afterwards called on the decedent and asked her if she had placed his note in the hands of Stephens for collection, and that, “She said she had not; that she had hired him to attend to business for her; that she had got too old to go around to attend to it.” This testimony tended to establish not a mere declaration of intention on the part of the decedent to pay, but involved the assertion that she had agreed to pay. The finding of the court below that the decedent had agreed to pay Stephens for the services which he performed, being based on this direct testimony, we do not feel warranted in reversing it. Conceding, however, that the appellee was entitled to recover, it does not follow that he was entitled to compensation for his services at the rate which he demanded. The testimony did not disclose what business Stephens had been hired to attend to for decedent, nor what amount he was to be paid. The amount which he should be awarded, therefore, is the value of the services which the evidence established that he had performed: Miller’s Appeal, 100 Pa. 568. The services were performed occasionally and irregularly, and there was not a scintilla of evidence to sustain a contract either express or implied that the appellee was to be paid a regular salary. The evidence disclosed that the appellee did not give any considerable portion of his time to the business of the decedent. Stephens was the collector of the school and township taxes and his principal business, as disclosed by the testimony in support of another claim before the auditor, was that of a teamster, in which he received compensation for himself and his team at the rate of $5.00 per. day. Mr. Buchanan, it is true, did testify that the services of Stephens were worth $100 a year, but careful consideration of his testimony, both direct and upon cross-examination, clearly discloses that in making that estimate the witness was referring to services rendered during a period long barred by the statute of limitations. This claimant can only be permitted to recover for the services rendered during the last six years of the life of the decedent. As to the amount which he can recover for the services rendered during that period, it was not sufficient for him to call a witness to testify what those services were worth, without showing what services were actually performed. He can only recover for what he did, not for what he might have done. Mr.' Buchanan did not pretend to make any estimate of the time which the claimant devoted to the business of the decedent. Six trips to Beaver to pay the county taxes of the decedent; two trips to the same place to deliver promissory notes to her attorney; calculating the interest due, upon three occasions, on a note held by the decedent against James McCutcheon; and calling upon William M. Doak and receiving a small payment upon a note held by the decedent are the sum total of the services shown by the evidence to have been performed by the claimant for the decedent during the last six years of the life of the latter. The time of the appellee, when giving the use of his team in connection with his ówn services, being disclosed by the evidence to be worth $5.00 a day, he is certainly not entitled to compensation at a higher rate for services of the character disclosed by the evidence in this case. Twelve days is a liberal estimate of the time for which he is entitled to compensation, and we are of opinion that he should be allowed $60.00 and no more.

The decree is reversed and it is ordered that the appellant pay one-half the costs of this appeal and that the other half of said costs be paid by the appellee, and the record is remitted to the court below with direction to make distribution in accordance with the foregoing opinion.


text:
    Sutterly, Appellant, v. Fleshman.

      Contracts — Gambling transactions — Payment of losses — Recovery back.

    1. In Pennsylvania the loser in a gambling transaction who has paid his losses, cannot recover them back.
    2. The courts of Pennsylvania will not, through any consideration of comity, enforce a right given by the statute of another state to a loser in a gambling transaction to recover back losses which he has already paid.
    3. Where either of two parties to a gambling contract has money in his hands to which the other is entitled, the action for the recovery of such money is in assumpsit and not in trespass. If the transaction, however, involves fraud or misrepresentation, the action may be in trespass.
    Argued Dec. 16, 1906.
    Appeal, No. 186, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 393, on verdict for defendants in case of Edward C. Sutterly v. Cora M. Fleshman, administratrix of James B. Fleshman, deceased, substituted in place of said James B. Fleshman and Maurice H. Power, trading as J. B. Fleshman & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover back losses paid in a gambling contract. Before Carr, J.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was' in refusing binding instructions for plaintiff.

      Trevor T. Matthews, for appellant.
    The laws of one state are enforced in the courts of another state, not only on the ground of comity, but also on the grounds of necessity: Forepaugh v. R. R. Co., 128 Pa. 217; McAllister v. Hoffman, 16 S. & R. 147.

      G. W. Pepper, with him A. S. L. Shields, for appellees.
    It has long been settled, that the real question is whether the money is still in the stakeholder’s hands. If it is, it may be recovered even after the bet has been won or lost. If the money has been paid to the winner, that is the end of the matter; no one has any rights: McAllister v. Hoffman, 16 S. & R. 147.
    October 11, 1909:
    Comity between different states does not require a law of one state to be executed in another, when it would be against the public policy of the latter state: Pope v. Hanke, 40 N. E. Repr. 839; Knight v. R. R. Co., 108 Pa. 250.
   Opinion by

Porter, J.,

The plaintiff brought an action of trespass against the defendants and filed a statement averring that, in October and November, 1904, he had engaged in certain stock gambling transactions with the defendants, that they had made three separate wagers, dependent upon the rise and fall of certain stocks; that as a stake or security for said wagers he had paid to the defendants, at various times, sums of money aggregating $1,400; that the bets were made and were to be executed at Trenton, in the state of New Jersey; that according to the laws of the state of New Jersey the bets were illegal and void and upon suit being brought to recover the amount of money so paid and deposited, to secure the performance of the terms of said bets, the money so deposited could be recovered back, if an action should be brought to recover the same within six months after the payment of the money and that this action was brought within said period; that the plaintiff .through his authorized agent had demanded of the defendants the payment to him of the sum of $1,400, so paid on account of said bets; and that the said defendants had failed and neglected to comply with said demand and had converted and appropriated the said money to their own use. The averments upon which plaintiff asserted his right to recover were such as, prior to the act of 1887, would have designated an action of trover as the proper remedy for the injury of which he complained, the alleged conversion of the money by the defendants. The action was in accordance with the act of 1887, designated generally an action of trespass, but there was nothing averred in the statement nor suggested by the evidence which in any manner would sustain an action of tort, as between the parties, unless the refusal of the defendants to pay over the money on demand constituted such a conversion as would have sustained an action of trover, at common law.

The defendants submitted a point requesting the court to charge that, “There is no evidence in this case of a conversion by the defendants, and the verdict in this case must be for the defendants;” which point the court affirmed. The point thus presented squarely raised the question of the plaintiff’s right, under the evidence, to recover in this form of action. The evidence presented by the plaintiff, if believed, established that the plaintiff had been for several years engaged in making wagering contracts with the defendants upon the rise and fall of the prices of stocks and that all the said transactions had been settled by the mere payment of differences, there having been no deliveries made under the contracts and none ever having been contemplated. All of the transactions had been settled, except the last three, which were involved in this action. The plaintiff had in the three transactions in question paid to the defendants, as margins, various sums of money aggregating $1,400, and it is, under his own testimony, evident that nearly all of the margins so advanced by him had been lost, by movements in the prices of stocks adversely to his wagers. That wagering contracts of all kinds are contrary to the common law of Pennsylvania is too well settled to require citation of authority. Wagering contracts of the character of that with which we are now dealing are void, not because they are within the provisions of the Act of April 22,1794, 3 Smith’s Laws, 177; Hirst v. Maag, 13 Pa. Superior Ct. 4; Bank v. Arnold, 187 Pa. 356, but because they have been uniformly held to be contra bonos mores, and, for that reason, incapable of enforcement at law: Brua’s Appeal, 55 Pa. 294. The settled public policy of the commonwealth refuses to lend the aid of its courts in gambling transactions, either to the winner to compel payment of his unpaid gains, or to the loser who has paid his losses, to enable him to recover them back: McAllister v. Hoffman, 16 S. & R. 147; Ruchizky v. DeHaven, 97 Pa. 202; Albertson v. Laughlin, 173 Pa. 525. The New Jersey statute, which the plaintiff offered in evidence, does unquestionably enact that a loser may recover the money which has actually been paid into the hands of the winner, and the plaintiff contends that, under the provisions of the constitution of the United States, the courts of Pennsylvania are in this action required to enforce the provisions of the New Jersey statute. While a foreign statute has no extraterritorial force, rights under it, not contrary to the policy of this state will, by comity be enforced by remedies according to the procedure of this state: Watson v. Brewster, 1 Pa., 381; Thornton v. Insurance Company, 31 Pa. 529; Knight v. Railroad Company, 108 Pa. 250; Forepaugh v. Railroad Company, 128 Pa. 217. The state policy decides to what extent the state will entertain in its courts transitory actions, where the causes of action have arisen in other jurisdictions. Different states may have different policies and the same state may have different policies at different times. When dealing with rights of this character the state may, without violation of the restrictions of the constitution of the United States adopt any policy which operates in the same way on the rights of its own citizens and those of citizens of other states, giving to one class all the privileges which it affords to the other: Chambers v. Baltimore & Ohio Railroad Company, 207 U. S. 142. The state of Pennsylvania, in pursuance of a long-established and well-founded public policy, declines to permit her courts to hear those who seek to recover money which has been actually paid to the winner in wagering contracts, and the constitution of the United States does not require that foreign gamblers should enjoy rights which the commonwealth denies to her own citizens. The plaintiff was not, therefore, in any form of action, entitled to recover the money which he had lost in these wagering contracts and which had actually been paid to the winner.

The plaintiff had voluntarily paid to, or deposited with, the defendants the money which he now seeks to recover, and there is not in the evidence anything which suggests that the payment was induced by fraud or misrepresentation. There was nothing in the mere circumstances under which the money passed into the hands of the defendants which could afford any ground for an attempt to recover it in an action of trespass. There was no agreement that the defendants should hold the money in a trust capacity, or that they should treat the fund as a special deposit, or that they should keep it separate from their other funds and return the identical coin or bills. There is nothing in the New Jersey statute which required these defendants to keep the money so received by them separate and apart from other funds or to do any particular thing with regard to the coin or bills which they so received. That statute made the acts of both the plaintiff and defendants unlawful, and gave to the plaintiff the right to recover the money which he had so paid “in an action of debt” founded on the statute; “in which action it shall be sufficient to declare, for so much money had and received for the plaintiff’s use.” The nature of the right which it gave the plaintiff was to recover, as if in an action upon contract. If we consider the nature of this right and then seek for the proper remedy under the law of Pennsylvania, for the enforcement of such right, the remedy must be by an action of assumpsit, and not as if for a tort. If we consider only the law of Pennsylvania, as applied to such transactions, then the right of the- plaintiff to recover was dependent upon the fact of his having in the hands of the defendants a sum which he had deposited as a. wager, which had not been lost and actually paid to the winner. Under such a state of facts a gambler may repent of his unlawful act and the law affords a locus penitentige. The law does not in either of the states go so far as to make the placing of wagers, as between the parties, a private trespass by one upon the property of the other. When, in Pennsylvania, one of the parties desires to withdraw from the wagering contract, of the class with which we are now dealing, he may notify the other party, and it then becomes the duty of the broker to repay so much of the deposit of his customer as remains in his hands. This is not because the transaction, as between the parties, involved a trespass, but because of a duty arising by operation of law. "Every person is bound and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation, of the' law. . . . Whatever, therefore, the laws order one to pay, that becomes instantly a debt, which he hath contracted to discharge3 Bl. Comm. 160. The action in casés of this character, is founded upon this contract implied by the law. When the property which has been deposited as a margin upon a wagering transaction is a chattel, any appropriate remedy may be resorted to for the recovery of the specific chattel, for the promise, which the law implies, is to deliver the property. When the margin which has been deposited consists of money the action must, in the absence of an express contract established by evidence, be founded upon this implied promise arising by operation of law, and must, in Pennsylvania, be in assumpsit. An action of trover will not lie for a sum of money, unless there is an obligation to pay the identical coin or notes which the defendant has received: Life Association v. Catlin, 2 Walker, 338; Davis v. Thompson, 10 Sadler, 563; Carpenter v. Jackson, 2 W. N. C. 436; Parker v. Morrison, 26 Pittsburg Legal Journal, 85. The evidence failed to establish the right of the plaintiff to recover in an action of trespass, and binding instructions were properly given in favor of the defendants.

The judgment is affirmed.


author: Henderson, J.,

text:
    Title Guaranty & Trust Company of Scranton v. Hildebrand, Appellant.

      Principal and surety — Bond—Voluntary association — Condition of bond.

    The condition, of a bond was that the principal should duly and faithfully obey all the decisions, orders, prohibitions and regulations of a voluntary association of which he was a member. The bond further provided for a service upon the principal of a copy of any decision, order or regulation of which he was declared to be in default. The principal was expelled from the association in proceedings regularly conducted against him. The surety paid the penalty of the bond and brought an action against the principal to recover the amount thus paid. The principal claimed in this action that a certified copy of the proceedings had not been served upon him as provided in the bond. It appeared, however, that an official notification in writing had been given to him of the action of the board of governors signed by the secretary. Held, that the " notice was sufficient under the terms of the bond, inasmuch as to certify means to testify in writing; to make a declaration about in writing; to make attestation in writing; to give certain information of a fact in writing.
    Argued March 3, 1909.
    October 11, 1909:
    Appeal, No. 38, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1905, No. 429, on verdict for plaintiff in case of Title Guaranty & Trust Company of Scranton v. A. M. Hildebrand.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit by a surety against a principal to recover amount paid by the surety. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $558.50. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      James L, Lenahan, for appellant.

      B. R. Jones of Atherton & Jones, for appellee.
   Opinion by

Henderson, J.,

The defendant became a member of the Building Trades Employers’ Association of Wilkes-Barre and Wyoming Valley and in so doing subscribed to the constitution and by-laws of the association and gave his bond in the sum of $500 with the plaintiff as surety to secure the faithful performance by the defendant of his obligation to the organization in accordance with its constitution and by-laws. It was recited in the preamble of the bond that the principal had become a member of the association upon his agreement and stipulation that he would obey and execute all decisions, orders, prohibitions and regulations of the board of governors of The Building Trades Employers’ Association, given in pursuance and made under the authority of the constitution and by-laws of said association, immediately upon service upon him of a copy of the same duly certified by the secretary of said association and would pay to said obligees the sum of $500 for liquidated damages by reason of any noncompliance of said principal with this agreement and stipulation. The condition of the bond was that the principal "duly and faithfully obey and execute any and all such decisions, orders, prohibitions and regulations of said Board of Governors of the said The Building Trades Employers’ Association given in pursuance and under the authority of the Constitution and By-Laws of the said Association.” The bond further provided as follows: "This undertaking is issued upon the express condition that upon due proof to the said Surety that the said Principal, after service upon him of a copy of any decision, order, prohibition or regulation has been declared to be in default thereof by said Board of Governors, and has upon demand failed to pay to said Obligees the amount of this undertaking then within thirty (30) days after receiving proof of said service and default, the said Surety agrees to pay the full amount of this undertaking, to said Obligees as liquidated damages, which sum is herewith stipulated as liquidated damages, and not as a penalty by the said Principal, the said obligees and the said Surety and the Surety and the said Principal herewith waive all defenses, except as above, they may have against the payment of said sum.” Proof was offered that the defendant was notified to appear before the board of governors of the association May 16, 1905, at eight o’clock in the evening at the rooms of the association to answer charges preferred against him and that he did not respond to that order. It further appeared that he was notified to attend an adjourned meeting of the board of governors to be held May 20, 1905, at eleven o’clock in the forenoon at the rooms of the association, to answer the said charges. To that notice the defendant replied, stating that he would not appear unless informed what the charges were and by whom they were made and asking who the board of governors were. To this communication the board of governors through its president replied stating what the charges were and informing the defendant who constituted the board of governors and notifying him to attend a meeting of the board on Saturday, May 20, at 11 A. m. at the rooms of the association to hear the charges. The defendant did not appear at the meeting and apparently paid no attention to this notice. Thereupon on the date last named the board of governors suspended him until the next annual meeting to be held June 1, 1905. Notice of this suspension was served on the defendant and at the annual meeting, June 1, his case was taken up, the charges were sustained, he was expelled from the association and a forfeiture of the bond declared. Afterward demand was made for the payment of the bond and on the defendant’s failure to pay the plaintiff was notified of the default and payment demanded of it. After having paid the amount of the bond this action was brought by the plaintiff for reimbursement. The court refused the request for binding instructions for the defendant and as that point covers the whole case it is the only assignment of error which needs consideration. It is not contended that the charges preferred against the defendant were not sustained, nor was any action taken against the decision of the association expelling him. Nothing appears to show that the proceedings were not regularly conducted in good faith or that the defendant did not have a full and fair opportunity to meet the accusations preferred against him. The charge was one which brought the defendant within the jurisdiction of the board of governors and the association, and from anything that now appears he was regularly expelled. When he became a member of the organization he voluntarily submitted himself to its jurisdiction and had notice that he was bound to such conduct as the constitution and by-laws required and that for any intended violation thereof he was liable to be deprived of his membership. If the assignments of error raised the question we could not review the case on its merits in this collateral proceeding. The point pressed on our attention by the appellant’s argument is that a copy of the action of the board of governors duly certified by the secretary of the association was not served upon the defendant as provided for in the preamble of the bond, and a distinction is attempted to be drawn between a notice signed by the secretary and a certified copy. An examination of the minutes of the association and of the oral evidence we think meets this objection. • The documents served on' the defendant were signed by the secretary of the association and declared to be the action of the board of governors, and of the association, and this was .a- certified copy within the meaning of the preamble of the bond. To certify means to testify to in writing; to make a declaration about in writing; to make attestation in writing; to give certain information of a fact in writing. The records of the meetings were kept by the secretary, and they report as fully as is usual in such informal proceedings the action taken at the respective meetings. There is no reason why the bond should not be understood in accordance with the ordinary meaning of the terms used therein. When, therefore, the secretary gave the defendant an official statement in writing of the action of the board of governors there was a compliance with the requirements of the bond. There is nothing in the bond which required that a “duly certified copy” of the charges preferred against the defendant should be served upon him, and as he was notified in writing by the chairman of the board of governors of the nature of the charges and no objection was made to the regularity or sufficiency of the notice the defendant cannot in this proceeding successfully object on that account. Our attention is called to the notice of the meeting May 20, 1905, at which the defendant was suspended, and it is contended that notice of the action of the board was merely that a motion was made that the defendant be suspended until the next annual meeting. But another important part of the minutes and of the notice is that “At a meeting of the Board of Governors the following resolution passed” referring to the resolution to suspend. The notice is therefore one that the motion to suspend was passed by the board. The conclusion of the learned trial judge is well supported by his reasoning and the evidence. We do not find sufficient grounds for concluding that an error was committed at the trial.

The judgment is affirmed.


text:
    Short v. Delaware & Hudson Company, Appellant.

      Carriers — Common carriers — Railroads—Authority of station agent— Perishable goods.

    1. Where it appears that a freight station agent of a railroad company has extensive powers to dispose of perishable goods which a consignee refused to accept, in such manner as he considers to the best advantage of the company, he may bind the company by an agreement with a consignee that if the latter will pay the freight due on carloads of strawberries in a damaged condition and take the berries and sell them at the best price he can get, the railroad company will pay any loss sustained by reason of the condition of the berries.
    2. The extent of the authority of an agent may depend sometimes on the nature of the agency, and may be extended or varied on the ground of implied authority, according to the pressure of the circumstances connected with the business with which he is intrusted. The emergency of an accident, or an unusual condition which requires prompt action, may invest the representative of the company highest in authority who is then present with power to do such things as are reasonable to meet the emergency.
    Argued March 4, 1909.
    Appeal, No. 33, March T., 1909, by defendant, from judgment of C. P. Lackawanna Co., March T., 1907, No. 839, on verdict for plaintiff in case of John H. Short v. The Delaware & Hudson Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for loss resulting from the deterioration in value of perishable goods. Before Newcomb, J.
    The facts are stated in the opinion of the Superior Court:
    Verdict and judgment for plaintiff for $450.99. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. J. Torrey, of Welles & Toney, for appellant,
    cited: Weldon v. Traction Co., 27 Pa. Superior Ct. 257; Lauer Brewing Co. v. Schmidt, 24 Pa. Superior Ct. 396; Maxson v. Mich. Cent. R. R. Co., 117 Mich. 218 (75 N. W. Repr. 459); Savannah, etc., Ry. Co. v. Humphreys, 114 Ga. 681 (40 S. E. Repr. 711).
    October 11, 1909:

      Samuel B. Price, for appellee,
    cited: Bank of Pennsylvania v. Reed, 1 W. & S. 101; Adams Express Co. v. Schlessinger, 75 Pa. 246; Parker v. Ins. Co., 129 Pa. 583; Tanner v. Oil Creek R. R. Co., 53 Pa. 411; Brooke v. N. Y., etc., R. R. Co., 108 Pa. 529; Chamberlain v. McClurg, 8 W. & S. 31; Burkholder’s App., 105 Pa. 31; Town of Brandon v. Jackson, 52 Atl. Repr. 114.
   Opinion by

Porter, J.,

The assignments of error raise but a single question: Did the court err in submitting to the jury the question of the existence of a contract, alleged to have been made by the freight agent of the defendant at Scranton, which was binding upon the defendant? Three carloads of strawberries, two of which had been shipped from South Carolina and the other from North Carolina, arrived at Scranton over the railroad of the defendant company; all of the cars had been long delayed in course of transportation, and when they reached their destination in the freight yard of the defendant a large part of the fruit was rotten and all of it was in very bad condition. The plaintiff and Mr. Payne, who was the freight agent of the defendant at Scranton, examined the strawberries, and both testified that the fruit was in very bad condition. All of the facts above stated were undisputed. The verdict of the jury determined the following'facts, viz.: the plaintiff declined to accept the cars unless the company would agree to make good any loss; whereupon Payne, the freight agent*of the company, agreed that if the plaintiff would pay the freight and take the berries and sell them at the best price he could get, that the defendant company would pay any loss sustained by reason of the condition of the berries. The plaintiff accepted this proposition and paid to the agent of the defendant freight amounting to $608.82. The plaintiff was only able to realize from the sale of the berries the sum of $771.50. The plaintiff then brought this action upon the alleged contract of the company made by Payne, the freight agent. There was a.conflict of evidence as to what arrangement had been made between the plaintiff and the freight agent of the defendant company, and the court submitted that question to the jury, with instruction that the burden was upon the plaintiff to satisfy them by the weight of the evidence that the contract which the plaintiff alleged had actually been made. The.court limited the amount which the plaintiff could in any event recover to the amount which had been actually paid for the berries at the point of shipment plus the freight, less the amount which plaintiff had realized from the sale of the fruit. There was no dispute that the plaintiff would have realized a considerable profit if the berries had been delivered at Scranton in good condition, but the court ruled that under the contract as proved, if the jury found that there had been such a contract the plaintiff could recover only his actual loss. The defendant does not complain of the amount of the recovery, but asserts that the freight agent had no authority to make the contract upon which the plaintiff relied and that plaintiff was not entitled to recover any sum whatever.

The evidence produced by. the defendant disclosed that Payne was the freight agent of the defendant at Scranton, and that he had rather extensive powers. He was the head man in his department at that place. He testified that when goods of a perishable nature arrived in a damaged condition, which was not satisfactory to the consignee, “We first tried to make some arrangement with the consignee to handle them. To handle them themselves, to accept them, take them and pay the charges in the regular way, and put in a claim. ... If they positively refused to accept them we turned them over to a dealer to handle them for our account, and in that case we tried to get another party entirely to handle the goods. Q. As I understand it you have charge of all the freight that is received here for delivery to any consignee? A. At the D. and H., yes, sir. Q. And that includes not only the delivery but the collection of freight charges? A. Yes, sir. Q. And the making of terms and conditions upon which the delivery will be made is wholly in your hands? A. If the goods, were refused, the agent is then authorized to dispose of them to the best advantage. Q. You have exclusive control of anything in the way of credit, and it is for you to determine whether the freight charges shall be paid spot cash or whether time shall be given, or. anything of that kind? A. It has been the custom to allow the agent that; it was at that time. Q. So that generally speaking the terms and conditions upon which you make delivery and collection are wholly with you? A. Yes, sir.” It thus appears that this agent had authority to dispose of goods, which a consignee refused to accept, as he considered to the best advantage, and that he had authority to determine the conditions upon which goods were to be delivered to a consignee. The extent of the authority of an agent may depend sometimes on the nature of the agency, and may be extended or varied on the ground of implied authority, according to the pressure of the circumstances connected with the business with which he is intrusted. The emergency of an accident, or an unusual condition which requires prompt action, may invest the representative of the company highest in authority who is then present with power to do such things as are reasonable to meet the emergency: Bank of Pennsylvania v. Reed, 1 W. & S. 101; Quinn v. Railway Company, 7 Pa. Superior Ct. 19; Heinrich v. Pittsburg Railways Company, 36 Pa. Superior Ct. 612; Terre Haute, etc., Railroad Company v. McMurray, 98 Indiana, 358; Northern Central Railway Company v. State, 29 Maryland, 420. The contract asserted by plaintiff, if it was made, related to a branch of the business which the defendant company had committed to the control of the agent with whom .the plaintiff dealt, and that agent had authority to make reasonable regulations touching the business: Adams Express Company v. Schlessinger, 75 Pa. 246; Tanner v. Oil Creek Railroad. Company, 53 Pa. 411; Chouteaux v. Leech & Co., 18 Pa. 224. When the carloads of berries which had been shipped in good condition were tendered by the defendant company to the consignee in a dtamaged condition and the consignee refused to accept the s?/me, the representative of the company then present, highest in authority, was bound to meet the conditions thus presente^’!, The consignee presumptively had a well-founded claim for damages against either this line or some connecting carrier. The defendant company might, it is true, escape liability by showing that the delay which caused the damage had not occurred upon its part of the line of transportation: American Express Company v. Second National Bank, 69 Pa. 394. There was, however, no time to investigate as to what particular carrier was liable. The berries had already greatly deteriorated in value because of the long delay in transportation, and the delay of another day might render them absolutely worthless. To hold goods until some general officer of the company could be summoned, or even communicated with, might result in their total loss. These facts had no doubt been taken into consideration by the defendant company when it conferred upon the agent- with whom the plaintiff dealt, as that agent himself testified, authority to dispose of perishable goods, which a consignee declined to accept, “to the best advantage.” The contract, which the jury found that this freight agent did make, resulted in his at once receiving from the plaintiff the freight charges, amounting to $608.82, and, by inducing the plaintiff to act promptly, the sum of $771.50 was realized from the sale of the then rapidly decaying fruit. The plaintiff recovered in the court below the sum of $895.85; less than $300 more than the amount of the freight which he paid the agent at the time the contract was made. We are of opinion that, in view of the broad powers which the agent testified had been conferred upon him by the defendant company, the case was for the jury; as there was no doubt under the evidence of the existence of an emergency which demanded prompt action.

The judgment is affirmed.