author: Morrison, J.,

text:
    Corpies v. Sand Company, Appellant.

      Negligence — Infant—Wagon—Identification of wagon — Contributory negligence of parent.

    In a negligence case, where the plaintiff has proved that the defendant operated upon the streets of a city, wagons of a particular kind, marked in a peculiar manner, and that such a wagon so marked was responsible for the accident, such proof is sufficient to sustain a finding by the jury, under proper instructions, that the wagon was the property of the defendant company.
    Proof of ownership, under such circumstances, is sufficient to sustain an inference in favor of a third party that a person in charge of the property was the agent or servant of the owner.
    In an action to recover damages for injuries to a child of tender age, the evidence showed that the horses and wagon which ran down the child were being driven at a slow walk in broad daylight, in front of the premises where the child lived with its parents; that the mother left the child in the house and stepped across the street, and the child came out of the house and attempted to follow her, and was knocked down and severely injured by the horses and wagon. Held, that the negligence of the defendant, and the contributoiy negligence of the mother, were questions for the jury.
    Argued April 9, 1906.
    Appeals, Nos. 21 and 22, April T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 5, on verdict for plaintiffs in case of Mary Corpies, by her father and next friend, Ignetz Corpies, in right of said Mary, and Ignetz Corpies in his own right v. Iron City Sand Company.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a child. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Mary Corpies for $500 and for Ignetz Corpies for $152. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Stephen Stone, of Stone & Stone, for appellant.
    — The facts as they are set forth, do not show any negligence, direct or implied, by any agent of the Iron City Sand Company, or by the driver of the wagon in question: Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Brown v. Schellenberg, 19 Pa. Superior Ct. 286; Funk v. Electric Traction Co., 175 Pa. 559 ; Chilton v. Central Traction Co., 152 Pa. 425; Miller v. Traction Co., 198 Pa. 639; Kay v. Penna. R. R. Co., 65 Pa. 269.
    It is submitted that when the mother left the child unprotected in the house, left the doors open in such a manner that the child had free access to the street, and wandered out and was injured, that even if the child be permitted to recover by reason-of the law refusing to allow the child to be charged with contributory negligence, — the father as appellee cannot recover, by reason of his own negligence : Johnson v. Reading City Pass. Ry. Co., 160 Pa. 647; Westerberg v. R. R. Co., 142 Pa. 471; Glassey v. Hestonville, etc., Pass. Ry. Co., 57 Pa. 172.

      Joseph Howley, with him W. A. Hudson, for appellee,
    cited as to the identification of the wagon: Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; McCoun v. N. Y. Central, etc., R. R. Co., 66 Barb. 338; Norris v. Kohler, 41 N. Y. 42; Edgeworth v. Wood, 58 N. J. Law, 463; 33 Atl. Repr. 940 ; Connor v. Pennsylvania Railroad Company, 24 Pa. Superior Ct. 241.
    Cited on the question of negligence : Brown v. Schellenberg, 19 Pa. Superior Ct. 286; Satinsky v. Mutual Brewing Co., 187 Pa. 57.
    Cited as to the contributory negligence of parents: Del Rossi v. Cooney, 208 Pa. 233; Addis v. Hess, 29 Pa. Superior Ct. 505.
    May 14, 1906:
   Opinion by

Morrison, J.,

In this action of trespass, founded on the alleged negligence of the defendant, there was a verdict and judgment in favor of Mary Corpies for the sum of $500, and also a verdict and judgment in favor of Ignetz Corpies, the father of Mary, for the sum of $152, and from these judgments the defendant appealed.

The learned counsel for the appellant relies on a single assignment of error, to wit: “ The court below erred in refusing to affirm the first point submitted by the defendant, which point and the answer of the court thereto, is as follows: First: Under all the evidence, the verdict must be for the defendant. Answer: Refused.”

The learned counsel further states that the discussion under this assignment of error will be made under three points, to wit:

1. “ The Iron City Sand Company did not own the wagon nor the horses which caused the injury to the child, and the driver thereof was not in the employ of the Iron City Sand Company.”

2. “ There was no proof of negligence on the part of the Iron City Sand Company in the case.”

3. “ The parents in no event should be permitted to recover, on account of their gross negligence.”

If, under the evidence, the fact as assumed in the first proposition could be found in favor of the appellant, it would require a reversal of the judgments. But a careful examination of the evidence convinces us that the testimony of at least two witnesses was quite sufficient to carry the question of the ownership of the wagon and horses which caused the injury, to the jury. It seems to us that the evidence of Mr. Wells and Mrs. Ware was sufficient to bring the case within the rule of the late case of Hennessey v. Baugh & Sons Co., 29 Pa. Superior Ct. 310. The syllabus of that case is a fair index of the decision upon the question of the identity of a wagon and horses, and the inference to be drawn that the person in charge of the same was the agent or servant of the owner: “In a negligence case where the plaintiff has proved that the defendant operated upon the streets of a city, wagons of a particular kind, marked in a peculiar manner, and that such a wagon so marked was responsible for the accident, such proof is sufficient to sustain a finding by the jury, under proper instructions, that the wagon was the property of the defendant company.”

■ “Proof of ownership, under such circumstances, is sufficient to sustain an inference in favor of a third party that a person in charge of the property was the agent or servant of the owner.” See also the several cases cited in that opinion.

Under these authorities,' we are fully warranted in holding that the learned court did not err in submitting the questions raised under the first proposition to the jury, and the verdict is conclusive that the jury found both of these questions against the defendant.

As to the second proposition that there was no proof of negligence on the part of the appellant, we are compelled also to disagree with the contention on the part of the appellant. The evidence establishes the fact that the horses and wagon were being driven at a slow walk, in broad daylight, in front of the premises where the injured child resided with its parents; that the mother left the little child in the house and stepped across the street, and the child came out of the house and attempted to follow her and' was knocked down and severely-injured by the horses and wagon. In our opinion, it cannot be said, as a matter of law, that there was no proof of negligence on the part of the driver of the appellant’s team. It is hardly conceivable that a man driving a team at a slow walk, in the middle of a street, in a populous city, could run over a little child, if he had been using such care as the law required in the circumstances described in the evidence. We think, under all of the evidence, it was for the jury to determine whether or not the driver was negligent. It is argued that if the child rushed suddenly from the curb, in front of or against the horses or wagon, and was injured, no negligence could be imputed to the driver. This is undoubtedly true, but whether or not the accident was caused in this manner was not a conceded fact.

The learned counsel cites Brown v. Schellenberg, 19 Pa. Superior Ct. 286, but that case sustained the court below in submitting the case to the jury where a child seven years old was injured in a manner somewhat similar to the accident in the present one.

Funk v. Electric Traction Co., 175 Pa. 559, is also cited, but that was a case of a boy, thirteen years of age, running directly in front of a rapidly moving electric car, which was in plain sight of the boy, and we do not think the facts and decision pertinent to the present case.

Chilton v. Central Traction Co., 152 Pa. 425, is also cited, but that is another case where a child, without warning, ran from the pavement in front of a moving traction car. This we consider very different from a child being driven over by a slow walking team of horses.

Miller v. Union Traction Co., 198 Pa. 639, another case cited by appellant, is where a boy, eleven years old, suddenly left the sidewalk and ran against a moving street car.

Johnson et ux. v. Railway Company, 160 Pa. 647, cited by appellant, is another case whére a child, twenty months old, was run over by a street car. In that case the mother stood in the front door and permitted the child to pass out through that door and across the intervening sidewalk and street, a distance of about twenty-eight feet, where, in immediate view of the mother, it was killed and a recovery was denied on the ground of her contributory negligence. But the facts in that case materially differ from the one under consideration.

Westerberg et al. v. Kinzua, etc., R. R. Co. 142 Pa. 471, cited by appellant, was a case where the injured children were using the railroad track for a footwalk and there was evidence that they were in the habit of so using this track, with the knowledge of their parents, and the suit was in favor of the parents.

We are also referred to Glassey v. Hestonville, etc., Passenger Ry. Co., 57 Pa. 172. But that was a case where the child was permitted by its parents to run at large in the streets, and we do not think it rules the present one. We are clearly of 'the opinion that there was sufficient evidence of negligence on the part of the appellant to carry that question to the jury.

The third proposition is that the parents cannot recover on account of their gross negligence. In this we are not able to agree with the counsel for the appellant. It is evident that the father left the child in the care of its mother and there is no evidence that she knowingly or carelessly permitted the child to run in the street, but, on the contrary, she left the child in the house, apparently for a very short time, and we are not permitted to say, as a matter of law, that because this child escaped from the house, into the street, and was almost instantly knocked down and injured by the appellant’s driver, that the father is precluded from recovery on the ground of contributory negligence. In our opinion the question of contributory negligence was for the jury. It will not do to say, as a fixed rule of law, that a woman having her household duties to look after, and the care of a child, and no servant or assistant, is guilty of contributory negligence because she fails to keep the child constantly within her view. If the mother left the child playing in the house, for a few minutes, it is not a certain legal inference that she ought to have anticipated the result which followed.

The learned counsel takes no exception to the rulings on evidence nor to the charge of the court, and we may say in passing, that the charge is adequate and impartial, and the jury having found all of the material questions against the defendant, we do not feel warranted in disturbing the judgments.

The assignment of error is dismissed and the judgments are affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Patterson v. Wyoming Valley District Council, Appellant.

      Contempt of court — Evidence—Witness—Criminal liability — Constitutional law — Equity—Strikes.
    Where a contempt of court complained of consists merely in the refusal to do or refrain from doing some act commanded or prohibited for the benefit, primarily at least, of a party litigant, proceedings to ascertain such contempt and enforce obedience to the order or decree, are akin to execution process and civil rather than criminal in their nature.
    Where a labor organization and its members have been enjoined from committing certain acts in the nature of a “boycott,” and the decree of the court has been disobeyed, officers of the organization may, in contempt proceedings, be compelled to produce the records and minute books of the organization. Such a proceeding is not a “criminal case” or criminal prosecution within the meaning of the federal and state constitutions.

      Contempt of court — Sentence—Labor organization.

    The individual members of an unincorporated labor organization, who have been active in its management, may be punished for a contempt of court committed by the organization.
    Argued Jan. 9, 1906.
    Appeal, No. 38, Jan. T., 1905, by defendant, from decree of C. P. Luzerne Co., Dec. T., 1901, No. 2, sentencing for contempt of court in case of J. E. Patterson & Co. v. Wyoming Valley Council et al.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlajdy, Head and Beaver, JJ.
    Affirmed.
    Rule for an attachment for contempt of court. Before Ferris, J.
    The opinion of the Superior Court states the case.

      Errors assigned were (1) order for production of books; (2) the-decree making absolute rule for attachment and (3) the sentence of the court.

      T. R. Martin, and J. L. Lenehan, for appellant.
    — We contend that the right of the defendants to refuse to handle the material or lumber of J. E. Patterson & Co., or any other person is án established right, and it was so ruled affirmatively by the honorable court below, and so recognized and decided by our Supreme Court in the case of Erdman v. Mitchell, 207 Pa. 79.
    . There is- no wrong in the refusal of the members of a union to have any dealings with an employer or with any person dealing with him, so long as strikers employ no other means to deter persons from dealing with an employer than persuasion and the withdrawal of their own patronage: Bohn Mfg. Co. v. Hollis, 54 Minn. 223 (55 N. W. Repr. 1119); Longshore Printing Co. v. Howell, 26 Oregon, 527 (38 Pac. Repr. 547); Com. v. Sheriff, 15 Phila. 393; Cote v. Murphy, 159 Pa. 420; Rex v. Seward, 1 Ad. & E. 706; Carew v. Rutherford, 106 Mass. 1.
    The court erred in obliging the defendants to produce books and papers: State v. Knight, 3 So. Dakota, 509 (54 N. W. Repr. 412).

      J. B. Woodward, of Barling Woodward, for appellee.—
    Where a corporation is ordered to refrain from doing a particular thing, every member of the corporation may be held in contempt: Davis v. New York, 8 N. Y. Superior Ct. 451; U. S. v. Debs, 64 Fed. Repr. 724; Thompson v. Penna. R. R. Co., 48 N. J. Eq. 105 (21 Atl. Repr. 182); Erdman v. Mitchell, 207 Pa. 79.

      May 14, 1906:
   Opinion by

Head, J.,

On October 10,1901, the present plaintiffs filed a bill in the court of common pleas of Luzerne county alleging they were being injured in their business by reason of a “ boycott ” instituted and maintained by the present appellants and others, as a result of which workmen were prevented from working on any buildings to which any material was furnished by the plaintiffs, who conducted a planing mill and dealt generally in lumber and builders’ supplies. An answer was filed and the case went on practically to final hearing, after which, on April 7, 1902, a decree was entered continuing the injunction indefinitely. This was regarded by the parties as in effect a final decree putting an end to the controversy. As no appeal was ever taken from this decree there is no occasion for us to consider or discuss the important principles on which the learned court below founded its judgment. They were most exhaustively summed up and ably presented in the opinions filed before and with the final decree.

On November 17, 1904, the plaintiffs filed their petition, accompanied with affidavits, representing that, in violation of the injunctive decree previously entered, the injurious interference with their business was being continued, specifying particular instances, etc. A rule was thereupon granted to show cause why an attachment, as for contempt, should not issue; an answer was filed, testimony was taken, and on September 18, 1905, the rule was made absolute, the attachment issued and on September 22,1905, the court imposed the sentence from which this appeal is taken. While testimony was being taken on the rule certain officers of the Wyoming Yalley district council and subordinate locals were subpoenaed to produce their records and minute books showing what action, if any, had been taken concerning the business of the plaintiffs. Acting under advice of counsel they refused to produce these records before the commissioner who was taking the testimony, and on November 5, 1904, the court filed an order requiring the production of the records. This is the first error assigned in the present appeal.

The argument advanced to convict the learned court below of error in this respect is drawn from article Y. of the amendments to the constitution of the United States, which provides that no person “ shall be compelled in any criminal case "to be a witness against himself; ” and sec. 9 of art. I. of the constitution of Pennsylvania which provides that “ in all criminal prosecutions the accused cannot be compelled to give evidence against himself.” These provisions having been imbedded in' the fundamental law to safeguard the individual rights and liberties of the citizen must be construed with reasonable liberality so as to accomplish the object intended. But it is equally clear that their construction should not be so strained as to compel their application to cases not clearly and fairly within the letter or intendment of the language quoted. Now it must be apparent at a glance that the immunity from testifying is conferred, not in all cases, nor even in all cases where it may be in some way to the detriment of the witness to be compelled to give evidence; but only in such cases as are fairly embraced in the expressions “ in any criminal case,” “ in all criminal prosecutions.” In any ordinary or commonly accepted understanding of the meaning of these expressions, an investigation begun in a court of equity to determine whether its decree, entered in a purely civil suit between private parties, had been obeyed or violated, could hardly be classed as either “ a criminal case,” or “ a criminal prosecution.” But our courts, in their solicitude to secure to the citizen, the full measure of his constitutional rights, have not been content to rest their judgments upon any such consideration ; but have sought for the nature and essential character of the proceeding in question and from a study of these have determined whether, in substance, it was civil or criminal. Thus it has been held that in an action to recover penalties inflicted by a statute the defendant can neither be compelled to testify against himself, nor to produce his books to be used as evidence against him: Boyle v. Smithman, 146 Pa. 255. So the Act of June 11, 1879, P. L. 129, enabling a plaintiff in an execution, upon filing an affidavit of his belief that the defendant was fraudulentíy concealing property, etc., to examine the defendant on oath as to said property, was held to be a violation of the constitutional provision now under consideration: Horstman v. Kaufman, 97 Pa. 147. In these and many other cases that could be cited the court determined - that the proceeding, in its nature, was criminal and thus drew the witness within the sheltering mantle of the constitution.,

What, then, was the essential character of the proceeding in the court below where the immunity from testifying and producing records claimed by certain witnesses was denied them ? As we have already seen it was simply an inquiry by a court of equity to determine whether its own decree, made in a strictly civil case, had been obeyed or contemptuously violated by the party against whom it had been entered.

Proceedings to ascertain and punish contempts are as ancient as the courts which conduct them. It has been well said that “ the power .to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge:” Watson v. Williams, 36 Miss. 331, cited in In re Debs, 158 U. S. 564 (15 Sup. Ct. Repr. 900). But from the earliest days of our legal history con-tempts of court and proceedings to ascertain them have been divided into two broad and easily distinguishable classes. Where the alleged contemptuous act is aimed directly at the power or dignity of the court, or subversive of the due administration of public law; and where the responsive act of the court is purely punitive in character, to vindicate the rights of the people at large vested in their properly constituted legal tribunals, such con-tempts, and the proceedings to ascertain and punish them, have always been regarded as essentially criminal — as distinguished from civil — in their character. But where the act complained of consists merely in the refusal to do or refrain from doing some act commanded or prohibited for the benefit, primarily at least, of a party litigant, proceedings to ascertain such contempts and enforce obedience to the order or decree, have ever been deemed akin to execution process and civil, rather than criminal, in their nature. “Indeed the attachment for most of this species of contempts, and especially for nonpayment of costs and nonperformance of awards, is to be looked 'upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, beipg properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon: ” (Black. Comm. bk. IV, p. 285. The same distinction has been drawn by the courts of last resort of many of our states, but a quotation from one will be sufficient to make obvious the point now under consideration. In Thompson v. Penna. R. R. Co., 48 N. J. Eq. 105 (21 Atl. Repr. 182), the court says: “ Proceedings in contempt are of two classes namely, first, those instituted solely for the purpose of vindicating the dignity and preserving the power of the court. These are criminal and punitive in their nature and are usually instituted by the court in the interest of the general public and not of any particular individual or suitor. Second, those instituted by private individuals for the purpose mainly, if not wholly, of protecting or enforcing private rights and in which the public have no special interest. These are remedial or civil in their nature rather than criminal or punitive.” See also People v. O. & T. Court, 101 N. Y. 245 (N. E. Repr. 259) ; Dodd v. Una, 40 N. J. Eq. 672 (5 Atl. Repr. 155) ; Water Co. v. Strawboard Co., 75 Fed. Repr. 972.

Although we have been referred to no Pennsylvania case exactly in point there is ample authority for holding that the distinction so clearly stated by the New Jersey court, in the case quoted from, is recognized in our own state. Our act of 1842, abolishing imprisonment for debt, excepts from its operation “proceedings as for contempt to enforce civil remedies.” In Chew’s Appeal 44 Pa. 247, it was held that a court of equity has power to enforce a decree for the payment of money by a trustee by process of attachment against his person as for a contempt. The orphans’ court has like power : Tome’s Appeal, 50 Pa. 285; Com. v. Reed, 59 Pa. 425.

A careful study of all these cases leaves no room to doubt that the proceeding in the court below was a civil proceeding in essence and substance; that under no adjudication of the terms “ a criminal case ” or “ a criminal prosecution ” could it be fairly classed as either, and, as a consequence, that no constitutional right was denied to the appellants in compelling the production of the boobs and records referred to in the first assignment of. error which is, therefore, overruled.

The second assignment alleges error in making absolute the rule to show cause why an attachment should not issue. The argument supporting it indicates that the ruling of the court below is challenged because there was no sufficient evidence to warrant a finding that the appellants had been, in fact, guilty of any violation of the decree previously entered. In other words, we are asked to review the action of the court in ascertaining the fact of a contempt of its own order and decree. As the power to ascertain the fact of a contempt is a necessary and integral part of the right of a court to enforce its own decrees and to punish those who willfully disregard or defiantly disobey them, it has been frequently held by courts of the highest authority that the decision of the court wherein the contempt was committed is, as to the fact of such contempt, final and nob the subject of review. In re Debs, 158 U. S. 564 (15 Sup. Ct. Repr. 900), Mr. Justice Brewer, speaking for the whole court says : “ But the power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.”

The same doctrine was held by Chancellor Kent in the case of Yates, 4 Johns. 317, and by the court of King’s Bench in the case of Earl of Shaftsbury, 6 State Tr. 1270. In our own case of Com. v. Newton, 1 Grant’s Cases, 453, Woodward, J., after setting forth the powers of the Supreme Court, says: “ This charter of our powers cannot be so narrowed by construction as to exclude proceedings for contempt. We do not, indeed, revise such cases on their merits. The courts, having a limited jurisdiction in contempts, every fact found by them is to be taken as true, if it appears to us that they proceeded within and did not exceed their jurisdiction; but for the purpose of seeing that their jurisdiction has not been transcended, and that their proceedings, as they appear of record, have been according to law, we possess, and are bound to exercise, a supervisory power over the courts of the commonwealth.”

There being no complaint that the court below had exceeded its jurisdiction or that its proceedings, as they appear of record, have not been according to law and precedent, speaking for myself, I would say there appears no ground for the exercise of the supervisory powers of the appellate court. But, in addition, we feel obliged to say that a careful reading of all the testimony discloses ample warrant for the finding that there was, in fact, a contemptuous violation of the injunction entered by the court below, and the second assignment is therefore dismissed.

The third and fourth assignments assail the sentence imposed by the court below upon those adjudged guilty of contempt. In form, and the character of the punishment inflicted, the sentence is in harmony with the provisions of the act of 1836 and the decisions of the Supreme Court: Com. ex rel. v. Perkins, 124 Pa. 36.

The particular error alleged in this respect seems to have been that Daniel Post and Peter Noser were ordered to stand committed until the fine imposed on the Wyoming Valley district council should be paid. It is to be remembered that this body, called the district council, was not an incorporated society. It was not a person, natural or artificial. It was but a name, adopted for their own convenience, by the individuals composing it. Each individual who became a member thereby adopted that name as a proper designation of himself acting with his fellows to carry out the object common to all.

Such a body could not be sued, eo nomine, in a common-law action: McConnell v. Apollo Sav. Bank, 146 Pa. 79.

It partakes more of the characteristics of a partnership than of a corporation. The law therefore looks behind the name and deals- with the individuals who move and act under and behind such name chosen by themselves. They lose neither their identity nor their individuality by the assumption of the common name. Just as the obligations and responsibilities of a partnership become those of each individual member of the firm, so, when the moment of responsibility comes, must the individual actors of a body like this stand forth from behind the veil with which they have enveloped themselves and assume their proper shares of the common burden. It is characteristic of courts of equity that they do not usually enforce their decrees by writs of execution directed in rem as do commoii-law courts; but by coercing the persons of individuals who have been properly brought within their grasp. Hence particular supervision of the affairs of unincorporated societies has been committed to our courts of equity as best equipped to deal with such bodies: Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393.

The appellants, Post and Koser, were shown by the evidence to have been active and influential members of the “ district council.” They were present at most of the meetings of which the records were in evidence and particularly at the one where action was taken which has” been found to be a violation of the decree. If they cannot be held responsible for such a contempt none of the other members can be. Thus the court will be' left to fulminate against a name only while the living, breathing actors who really did the acts subversive of the decree are beyond its reach. We cannot think that a court invested with the dignity and exercising the high powers of our courts of equity is so impotent to enforce its final decrees. If it must permit such contempts to go unpunished it would soon become itself contemptible. On the whole record we are all of opinion that no substantial error has been committed by the learned court below.

Appeal dismissed at the costs of the appellants.


text:
    Ehrhart’s Estate.

      Orphans’ court — Decree—Distribution—Mistake—Power to set aside decree —Intestacy—Conflict of laws.

    Where the orphans’ court in accordance with the laws of Pennsylvania awards all of the personal property of a deceased married woman dying without children to her husband, who was also her administrator, when it should have awarded him only one-half of the estate in accordance with the law of Maryland, where the decedent was domiciled, the court has power to revoke the decree, and make the distribution which it should have made in.the first place.
    Argued March 15, 1906.
    Appeal, No. 11, March T., 1906, by George Ehrhart, from decree of O. G. York Co., dismissing exceptions to auditor’s report in Estate of Priscilla Ehrhart, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordady, Head and Beaver, JJ.
    Affirmed.

      Exceptions to report of H. C. Brenneman, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

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

      James Gr. Glessner, for appellant.
    — The petition for review failing to set forth “ that the balance found due was not paid over by the accountant,” the court had no jurisdiction to make the following order and decree: Lehr’s App., 98 Pa. 25.
    At the first audit no evidence was adduced to show that the statutes of Maryland regulating the distribution of this estate were different from the statutes of Pennsylvania; they will, therefore, be assumed to be the same as our own, until shown by competent evidence, to be different: Bollinger v. Gallagher, 144 Pa. 205; Cabarga v. Seeger, 17 Pa. 514.

      T. Scott Offutt and Edward Chapin, with them John 1. Grellott, for appellee.
    — It is submitted, that the orphans’ court, aside from the act of 1840, had the power to entertain the petition of the appellees, under the general and inherent authority which all courts have to correct their own mistakes, caused by inadvertence, where the rights of no third persons have intervened, and that this power so far as it relates to the case at bar was not affected by this act, and the court had jurisdiction, notwithstanding that there was no allegation that the balance found to be due had not been paid over: Kinter’s App., 62 Pa. 318; Seager’s Est., 6 Pa. Dist. Rep. 105; Gillen’s App., 8 W. N. C. 499; Whelen’s App., 70 Pa. 410; Bucknor’s Estate; 7 W. N. C. 470.
    April 23, 1906:
   Opinion by

Head, J.,

It is clear that the first distribution made by the auditor and the decree of the orphans’ court finally confirming the same were radically and seriously wrong. They resulted in depriving the appellees of the one-half of the entire personal estate of their deceased sister, Priscilla Lenhart, to which they were plainly entitled under the law, and in giving the same to the appellant, the surviving husband of the deceased, who was also her administrator, and who had no legal right whatever to that poi’tion of the fund.

Of such a result, even when brought about under forms of law, we may properly say, in the language of Mr. Justice Paxson in Johnson’s Appeal, 114 Pa. 132, “it was so gross a mistake as to amount to a legal fraud.” As soon as the facts pointing out the existence of such mistake in its former decree were brought to the attention of the court below, it promptly instituted proceedings to correct .the same, and, after hearing, entered a final decree making the distribution as it should have been made in the first instance. From this decree this appeal has been taken by the husband of the deceased, the sole beneficiary of the error in the first decree. Inasmuch as orphans’ courts are, within their proper sphere, courts of equitable jurisdiction whose proceedings and decrees, generally speaking, aim at giving such relief as justice and equity may require, it would seem manifest that the decree appealed from should meet with our approval, unless the appellant can rely on some statute taking away the inherent power, possessed by all courts, of correcting errors in their own judgments where no rights of third parties have intervened; or limiting the time within which such a power might be exercised to a period that had fully elapsed before any relief was sought. A brief statement of the facts and the application to them of well-settled legal principles will show that this appeal cannot be sustained on either ground.

Priscilla Lenhart died in January, 1899, at her home in Baltimore county, Maryland, intestate and without issue, leaving to survive her a husband, the appellant, and a number of brothers and sisters, the appellees. Letters of administration on her estate were granted to her husband there, and this administration, under the laws of the state of her domicile, would be the primary or principal one for the settlement of her affairs. As a portion of her estate consisted of money due her from the estate of her father who was a resident of York county, Pennsylvania, at the time of his death, it was necessary to raise an ancillary administration in that jurisdiction and letters for that purpose were granted to her surviving husband, who thus became both principal and ancillary administrator. In due time he settled a partial and then a final account, both of which were confirmed without objection from any source. They showed a balance in his hands, after payment of all debts and costs, of $979 for distribution to and among those legally entitled to share therein. Although seven of the appellees were then living in York county they were given no actual notice of the proceedings and no one appeared before the auditor but the appellant and his counsel. The fund for distribution was personal estate. The a-uditor was not informed by the administrator that the laws of Maryland, the state of the domicile of the intestate, were different from those of Pennsylvania in cases like the one before him, and when the administrator claimed the whole of the fund as surviving husband, and no one appeared to object, the auditor awarded “ the entire balance, less costs of audit to George Ehrhart.” No exceptions having been filed, this report became finally confirmed, in due course, on April 28, 1901.

Had the deceased been, at the time of her death, a resident of Pennsylvania and the distribution of her estate directly controlled by our laws, the decree would have been “ according to law ” and right in every respect. But the laws of Maryland, as appears from the record, gave to the surviving husband only the one-half of the personal estate of his deceased wife, awarding the remaining one-half to her brothers and sisters; and as it requires no citation of authorities to prove that, in such a case and for the purposes of such a distribution, our state accepts and adopts, as her own, the laws of the sister state in which the deceased was domiciled, it follows that this estate was not distributed, in the first instance, “ according to law.”

When, in May, 1903, the appellees, having been apprised of the situation, filed their petition asking that the decree confirming the auditor’s report be stricken off so that the error already recited might be corrected, and further that the accounts be opened to permit them to contest two items of credit wrongfully allowed, as they claimed, their right to any relief was resisted by the appellant on the ground that the court, under the act of October 13, 1840, had no jurisdiction to review the proceedings. ■ The reasons assigned were that as to the alleged errors in the accounts, they were not set forth with the particularity required by that act; and as to the distribution, there was no formal allegation in the petition that the fund, in the hands o£ the accountant, had not been paid over to the party to •whom it was awarded by the decree. As the subsequent proceedings effected no change whatever in the accounts as filed, this feature of the case may be dismissed without further consideration.

The parties who were seeking relief were the same persons who had been injured by the former erroneous decree ; the court to which they applied was the same court which had inadvertently made the mistake complained of; the party against whom the relief was sought was the identical person who alone had profited by the mistake and the relief prayed f or was to compel him to restore the money wrongfully awarded to him as the result of that mistake, to those to whom it rightfully belonged.

Under such circumstances neither the parties nor the court needed the aid of the act of 1840 to enable the former to ask for and the latter to decree the correction of the error that had been made. The power to grant such relief has always been inherent in the courts and it has been frequently decided that it was not taken away by the act of 1840.

In Young’s Appeal, 99 Pa. 74, Mr. Justice Green uses the following language:

“ It cannot be doubted that the court below had ample power to correct the error of its original decree, either under or independently of the act of October 13, 1840. Nothing had been done under the decree, and if it was erroneous it ought to be corrected in the interest of justice and by the court that made it. . . . The discretionary power of the orphans’ court to correct its own errors by petition of review outside the provisions of the act of 1840 has been affirmed in the cases of Gillen’s Appeal, 8 W. N C. 499 and Whelen’s Appeal, 70 Pa. 410, and is manifest upon plain principles applicable to the power of all courts over their own decrees.”

To the same effect and in language equally plain are the opinions in Milne’s Appeal, 99 Pa. 483, and Johnson’s Appeal, 114 Pa. 132.

The whole purpose of the act of 1840, as has been held in Kinter’s Appeal, 62 Pa. 318, and other cases, was to give to a petitioner, who complied with its requirements the right to demand that which, before the passage of the act, he could have obtained only by a successful appeal to the discretionary power of the court. The appellees in the present case having successfully invoked the exercise by the court below of a power which it always possessed, as well since the act of 1840 as before, it would be illogical to hold that the jurisdiction of the court was ousted because the petition did not contain a formal averment which might have been necessary had they been demanding a right conferred on them only by the act of 1840.

But even if we regard the act of 1840 as operative on this petition we would still feel constrained to hold that the jurisdiction of the court below was properly grounded. It is true the proviso to the act declares, “ that this act shall' not extend to any cause when the balance found due shall have been actually paid and discharged by any executor, etc.” Plainly enough this proviso was intended for the protection of an honest accountant who, in pursuance of a court’s decree, had actually and in good faith paid out money in his hands to another person; who had thus lost the possession and control of the fund and who could not therefore be reinstated in the position, he occupied when the original decree was made. No such case is before us. The person who had the fund when the original decree was made is the same person who had it when the final judgment was entered. That he was called the “ administrator ” at one time and the “ distributee ” at another is of no importance. As the court below well says, “ we cannot close our eyes to the fact that the hand to pay was the hand to receive and that the accountant, constructively at least, still has this money in his pocket.” The refinement by which the appellant would be regarded as two persons, payer and payee, accountant and distributee, and thus be enabled to call to his aid the protection which the act only intended to extend under very different conditions, is too subtle to be adopted by a court dealing with substantial equities. Where, therefore, it appears from the record that the fund, when the petition is filed, is in the hands of the same person who held it when the decree complained of was entered, that person being the accountant, no formal averment that it has not actually been paid out is necessary to give the court jurisdiction, and Lehr’s Appeal, 98 Pa. 25, and kindred cases have no application. This conclusion is well stated in a careful opinion by Judge Penrose in Collins’s Estate, 10 Pa. Dist. Reps. 249, in the following language: “ But the distribution has not changed the actual custody of the fund sought to be sequestered, which has simply been transferred from the trust intended for the widow to the trust taking effect at her death, the trustee being the same individual in each case. This is not the sort of distribution which, under the act of 1840, prevents a review.”

The Act of March 31, 1905, P. L. 91, has no application because that legislation is not retrospective and by its terms does not affect estates of intestates.

The court below, like all courts of equitable powers, had a wide discretion as to the proper disposition of the costs and we can see nothing to warrant this court in holding that the discretion was abused.

Appeal dismissed at the costs of the appellant.


author: Orlady, J.,

text:
    Commonwealth ex rel., Appellant, v. Perrego et al.

      Practice, C. P. — Judgment—Opening judgment — Public officers — Principal and surety — Act of April 21, 1846, P. L. 413.
    Where an action of assumpsit is begun against a public officer and his surety, under the Act of April 21, 1846, P. L. 413, and there is nothing to indicate that the action was brought under that act, or that it was not an ordinary action under the act of 1887, a judgment entered by default of the defendants in not proceeding under the act of 1846, in presenting their defense, will be opened where an affidavit presented by the defendants shows that their case was entitled to be submitted to a jury.
    Submitted Jan. 10, 1906.
    Appeal, No. 51, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 757, -making absolute a rule to open judgment in case of Commonwealth ex rel. Kingston Township v. James D. Perrego and the American Bonding and Trust Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.

      Halsey, P. J., filed tlie following opinion :
    The judgment taken in this case is one that is seldom met with in practice. It was taken under the Act of April 21, 1846, P. L. 413, which provides : “ That in all suits hereafter brought in any court under the provisions of this act or the act to which this is a supplementary, the attorney officiating for the commonwealth shall file a declaration along with the preecipe, and judgment shall be entered therein and the sums be liquidated by the respective prothonotari.es as aforesaid immediately after thirty days from the return of the writ in each case, unless before that time the defendants'shall have filed an affidavit of defense and shall have put the cause to issue as is directed in the second section of this act in suits heretofore brought.”
    This act by. the Act of April 21,1857, P. L. 266,• applies to all suits against defaulting public officers or their sureties within this commonwealth. It is excepted out of the procedure Act of May 25, 1887, P. L. 271, in the eighth section, which provides that that act shall be ápplicable to the present actions of assumpsit, debt, covenant, trespass, trover and case, and that all other actions now existing shall remain as heretofore and are in no way affected by the passage of this act.
    The counsel for the defendants was misled, believing that before the judgment could be taken for want of an affidavit of defense the requirements of the Act of May 25, 1887, P. L. 271, must be complied with. As this action is one of the excepted proceedings out of the act of 1887, the attorney for the plaintiff when the requirements of the Act of April 21, 1846, P. L. 413, had been complied with, took judgment against the defendants for want of an affidavit of defense. The defendants, when the judgment was discovered, moved promptly to have it opened, and, in the affidavit upon which the rule was allowed, they have set forth matters of defense which, in our judgment, if they had been presented in an affidavit of defense, would have caused this case to have gone to a jury for trial.
    In the ease of John Hinton v. Eli Hart and John McGowen, 1 Woodward’s Decisions, 97, Judge Wabren Woodward, then of the court of common pleas in the twenty-third judicial district, and afterwards one of the justices of the Supreme Court of Pennsylvania, held : “ The application on the part of the defendants for relief has been made with reasonable promptness. The neglect to file an affidavit in proper time is proved to have been the result of accident and mistake. There has been no fault chargeable to the account of the party, and the oversight of his counsel ought not to prejudice him. The affidavit now filed sets out a defense on which a jury ought to pass. The uniform practice of the courts is to open judgments by default where the defendant comes in promptly, excuses his default and shows that he has a defense.”
    . This case is in almost all of its essentials similar to the one now before us for disposition. It was the exercise of an equitable power vesting in the court upon an application for relief, because of a mistake made by counsel.
    Rule absolute ; defendant to file an affidavit within ten days.

      Error assigned was the order of the court.

      W. Alfred Valentine, with him W. S. Casterlin and L. Floyd Hess, for appellant.
    — The plaintiff’s statement is sufficient, and even if it was not, the action of the defendants in alleging a defense on the merits, and moving to open the judgment, instead of applying to have it stricken off, was a waiver of all irregularities and defects : Com. v. Gruver, 13 Pa. Superior Ct. 553; Huston Twp. Co-operative Mut. Fire Ins. Co. v. Beale, 110 Pa. 321; Treasurer of Division, etc., v. Keller, 23 Pa. Superior Ct. 135; Hays v. Com., 14 Pa. 39.
    On defense on the merits was shown : Pfaff v. Thomas, 3 Pa. Superior Ct. 419 ; Hirschlan v. Krechman, 20 Pa. Superior Ct. 227 ; Lockard v. Keyser, 18 Pa. Superior Ct. 172 ; Heilner v. Falls Coal Co., 9 Pa. Superior Ct. 78 ; Shenk v. Hacker, 3 Pa. Superior Ct. 439.
    The default of the defendant has not been excused : Brennan v. Plymouth Twp., 31 Pa. C. C. Rep. 417 ; Boies v. Scranton, 1 Lack. Jur. § 204 ; Anderson v. Mergelkamp, 8 Del. Co. Rep. 586 ; Chase v. Swain, 9 Cal. 130; Shearman v. Jorgensen, 106 Cal. 483 (39 Pac. Repr. 863) ; Thompson v. Harlow, 150 Ind. 450 (50 N. E. Repr. 474).

      B. W. Davis, with him G. J. Clark, for appellees',
    cited: Sterling v. Ritchey, 17 S. & R. 263 ; Davidson v. Miller, 204 Pa. 223; Com. v. Geesey, 1 Pa. Superior Ct. 502; Hunter v. Forsyth, 205 Pa. 466 ; O’Brien v. Sylvester, 12 Pa. Superior Ct. 408.
    May 14, 1906:
   Opinion by

Orlady, J.,

The court below, after a fair consideration of all the facts in this case, decided that it would be unjust to allow the. plaintiff to assert a judgment which apparently had been regularly" secured. -

The Act of April 21, 1846, P. L. 413, provides for a procedure to secure judgment which is radically different from that in the practice Act of May 25, 1887, P. L. 271.

It was conceded by counsel for the defendant that they were misled in relying on the general practice prescribed by the act of 1887. The summons issued by the plaintiff was in its general form in assumpsit, without reference to the fact that it was a-proceeding under the particular act of 1846, and when judgment was entered technically in accordance with that act a petition was presented the same day to open it, in which the court was fully advised of certain defects in the statement, and a good defense was succinctly alleged so as to move the court to: make the order of which the plaintiff complains.

Appellate courts do not look with leniency upon acts of omission of duty by counsel which tend to delay the plaintiff in securing his just demands, but they are always' disposed to guard the records from unjust judgments. This is especially so where the rights of a surety are involved.

An inspection of this record clearly relieves the defendant’s counsel from any designed attempt to delay the disposition of the case, and there was nothing in the summons issued by the plaintiff to disclose that this action of assumpsit was founded upon a tax collector’s bond, or against á defaulting public officer, under the act of 1846 and the act of 1857. While it is not necessary that the summons should so show when, -as in this case, a valid defense is interposed, the record as made by the plaintiff maybe of avail in. moving the' court to open a judgment which has, either by design of the plaintiff or inad-vertence of the defendant, been inconsiderately'entered.

No unvarying rule can be laid down in such cases for the action of the court below, but when, after full considératiófi of the whole case, the result reached is approved by our own sense of justice and right, we will not interfere with its conclusions which are largely discretionary.

Authority for so holding is found in very many of our cases, the recent ones being Davidson v. Miller, 204 Pa. 223, Hunter v. Forsyth, 205 Pa. 466, and O’Brien v. Sylvester, 12 Pa. Superior Ct. 408.

The judgment is affirmed.


author: Mobbison, J.,

text:
    Rancil v. Krohne, Appellant.

      Statute of frauds — Guaranty—Collateral undertaking.

    An owner of a building operation, fearing that men employed by the contractors would quit work, said to them: “I want you men to stay with the job and complete it, and if you are afraid that you wall not get-your money, I will see that you get your pay.” Held, that the undertaking oí the owner was a promise to pay the debt of another, and, not being in writing, was void under the statute of frauds.
    Argued April 10, 1906.
    Appeal, No. 104, April T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 257, on verdict for plaintiff in case of A. J. Rancil v. Otto Krohne.
    Before Rice, P. J., Porter., Henderson, Morrison and Head, JJ.
    Reversed.
    Appeal from judgment of a justice of the peace. Before Collier, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $85100. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      A. B. Stevenson, for appellant.
    — This case is ruled by case of Lewis v. Lumber Mfg. Co., 156 Pa. 217.

      See, also, Dougherty v. Bash, 167 Pa. 429; Gable v. Graybill, 1 Pa. Superior Ct. 29.

      S. H. McOlure, for appellee.
    May 14, 1906:
   Opinion by

Mobbison, J.,

In the summer and fall of 1902, the plaintiff, a carpenter, was in the employ of one S. J. Brush, a contractor, at Swiss-vale. The plaintiff, settled with Brush, at the completion of his work, and it was agreed that the sum of $85.00 was due him. It seems to be conceded that the plaintiff brought suit against Brush and recovered a final judgment for this amount and issued execution thereon, but failed to collect anything. Thereupon the present suit was brought before a justice of the peace against the defendant, with whom Brush had the contract upon which the plaintiff worked. Upon appeal from the judgment of the justice, the case was tried in the common pleas and a verdict and judgment obtained against the defendant for the full amount of the plaintiff’s claim, and from that judgment we have the present appeal.

The record contains five assignments of error, but we think a single question raised by the assignments will dispose of the case. This question is whether certain oral representations and promises made by the defendant to the plaintiff, constitute an original undertaking for which the defendant would be liable, or a collateral undertaking or agreement to be liable for the debt or default of another. The evidence upon this question is flatly in conflict between the plaintiff and defendant, but the jury having found in favor of the plaintiff,, his version of the undertaking must be accepted as correct. He testified that the defendant said: “I don’t want.to see you men quit. I have got this building leased; I am to give possession on the first of January.” He said: “ If you men quit, then Mr. Brush is going to have trouble to get anybody to complete the' job.” He said: “ Another set of men would come on the job, and they would want to know why you quit, and if they found out the nature of the case they wouldn’t go to workand he said, “ I want to see -you men stay with the job and complete it, and if you are afraid you will not get your money, I will see that you get your pay. That was his words as near as I can remember, and on that strength we stayed there and completed it.” The plaintiff further testified that at the time he had the conversation with the defendant Brush owed him $85.00; that he worked on to the finishing of the job, for Brush, and in the meantime received $57.00, and that on January 9, when he quit working, there was a balance due him of $85.00.

In the opinion of all of the judges who sat at the argument of this case, the undertaking of the defendant was not an original promise to pay the plaintiff for labor to be performed for the defendant, but it was a collateral undertaking to be liable for the debt and default of another, not in writing, and, therefore, the defendant is not liable.

We think this case is ruled by Lewis v. Lumber Manufacturing Co., 156 Pa. 217. In that case, as shown by the syllabus : “ Plaintiff was employed by a contractor to cut timber. He was to receive a certain amount per day, and his board. After he had been working for some time, he said to an agent of defendants, who were owners of the land, that he was afraid he would not be paid for his work. The agent then said to him : ‘'Keep on to work just as you have been; we will see you paid.” He kept on at work, and settled with the contractor, who gave him an order on defendants for his wages, and was paid upon it the balance in defendants’ hands due to the contractor. Plaintiff then sued defendants for the balance due. Held, that tiie agreement of defendants’ agent was a collateral undertaking, within the statute of frauds, upon which there could be no recovery.” At the close of the opinion of the Supreme Court, page 219, it is said: “ It is not easy to see how a case could be imagined that would fall more clearly under the statute than the one now before us.”

Upon a careful consideration of the present case we are unable to discover any material thing taking it out of the rule above stated.

In Dougherty & Co., Appellants, v. Bash, 167 Pa. 429, it was held as stated in the syllabus: “ Under a parol agreement, plaintiffs were to continue to sell goods to certain of their customers and obtain from them all the cash they could, and take their notes for the balance due upon each month’s settlement, and ‘ defendant would discount said notes for plaintiffs without recourse.’ There was nothing said about the original debt being extinguished by the giving of the notes. Held, that the agreement was within the statute of frauds, and could not be enforced.” The essence of that decision is that the debts of the customers were the original ones and they were not extinguished, and, therefore, the promise of the defendant was simply to indemnify the sellers against the purchaser’s default, and, therefore, it was a contract of indemnity, and was clearly a contract within the statute of frauds.

In the present case, on the plaintiff’s own testimony, the debt was that of Brush and not of the defendant. The plaintiff testified in substance that at the time he talked with the defendant, Brush owed him $35.00 ; that after that he paid him $57.00, and that the balance of his earnings amounted to $85.00 when he quit working; that he kept right on working without any further conversation with the defendant; that Brush continued right on until the job was finished; that he worked under Brush until he (defendant) quit, and that Brush owed him $85.00 when he finally quit working. “ Q. That amount was agreed upon between you and Mr. Brush as being proper? A. Yes, sir. Q. Had you any contract with Mr. Krohne as to the amount per day or hour you were to receive? A. No. Q. And no talk about that? A. No.”

Thus it appears perfectly clear that the plaintiff worked for Brush and the $85.00 was due from him, and it is conceded that he sued Brush and obtained a judgment against him for this identical work. But now he seeks to recover another judgment against the defendant for the same work on the collateral undertaking which has hereinbefore been quoted. If his cause of action is not within the statute of frauds and perjuries, then we are unable to imagine a case that would fall within that statute: Nugent v. Wolfe, 111 Pa. 471; Riegelman v. Focht, 141 Pa. 380.

In May v. Walker, Appellant, 20 Pa. Superior Ct. 581, we held as stated in the syllabus: “As a general rule when the leading object of the promise or agreement is to become guarantor or surety to the promisee for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time with the promise of the principal is within the statute, and not binding, unless evidenced by writing. On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.”

The learned counsel for the appellee cites and relies on Gable, Appellant, v. Graybill, 1 Pa. Superior Ct. 29, but an examination of the exhaustive opinion of President Judge Rice in that case does not sustain the counsel’s contention. In that case the promise was : “ keep on with your work, and I will see you paid.” This, “ constitutes a promise to see that the principal performed his obligation, and, not being in writing, falls within the statute of frauds.” We consider that case strongly against the plaintiff.

The counsel also cites Speers v. Knarr, Appellant, 4 Pa. Superior Ct. 80, but that was a case where a vendor delivered lumber to one at the request and on the verbal agreement of another in substance that he would pay for it, and, of course, the undertaking was not a guaranty and not within the statute of frauds, because it was an original undertaking and, in its legal effect, was the same as the sale and delivery of lumber to any person who purchases it and agrees to pay therefor.

We are also referred to our own case of Pizzi v. Nardello, Appellant, 23 Pa. Superior Ct. 535. That case was affirmed by the Supreme Court in 209 Pa. 1, but a careful examination of the facts on which that decision rests will clearly distinguish it from the present case. There the surety was legally liable, and in making the promise he was subserving a purpose of his own, and made the debt his own.

We are also referred to Van Leuven v. Holmes, 13 Pa. Superior Ct. 77, and the cases therein cited. But that was a case where the defendant’s promise was 'in effect to pay his own debt, and, though that of a third person be incidentally guaranteed, it. is not necessary it should be in writing.

We are all of the opinion that the learned.court erred in submitting this case to the jury, and, therefore the judgment is reversed.


author: Mobbison, J., Mr. Justice Gray

text:
    Chatham National Bank, Appellant, v. Gardner.

      Limited partnership association — Failure to comply with statutory requirements — Act of June 2, 1874, P. L. 271.
    Where several persons attempt to form a limited partnership, under the provisions of the act of June 2, 1874, P. L. 271, but fail to sign, acknowledge and record a statement in writing in accordance with the provisions of the act, and also subsequently attempt to amend the articles of association, but' the amendment is signed by one partner only, all of the parties are liable to creditors as general partners.

      Limited partnership association — Promissory note — Signature to note.

    Where a promissory note shows on its face the name of a limited partnership association, and the note is signed by two individuals, one as secretary and the other as treasurer, the note will be deemed an obligation of the association, and not of the individuals who signed it.
    Argued March 7, 1906.
    Appeal, No. 16, March T., 1096, by plaintiff, from judgment of C. P. Elk Co., April T, 1908, No. 230, on verdict for defendants incase of Chatham National Bank v. J. K. Gardner, A. M. McClain and George A. McClain, trading as the Gardner Shingle Company, Limited.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on promissory notes. Before Mayer, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendants.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in directing a verdict for defendants.

      Fred H. Ely, for appellant.
    — -.The defendants were liable as general partners and the act of June 2, 1874, does not apply: Eliot v. Himrod, 108 Pa. 569; Van Horn v. Corcoran, 127 Pa. 255; Haslet v. Kent, 160 Pa. 85; Blumenthal v. Whitaker, 170 Pa. 309; Sheble v. Strong, 128 Pa. 315; Lee v. Burnley, 195 Pa. 58.
    The two partners had a right to issue the notes in suit and Gardner is bound by their action: Sedgwick v. Lewis, 70 Pa. 217; Investment Co. v. Russel, 148 Pa. 496; Haldeman & Grubb v. Bank of Middletown, 28 Pa. 440; Lancaster County Bank v. Garber, 178 Pa. 91; Moorehead v. Gilmore, 77 Pa. 118; Miller v. Consolidation Bank, 48 Pa. 514; Hoskinson v. Eliot, 62 Pa. 393; Phelan v. Moss, 67 Pa. 59; Hogg v. Orgill, 34 Pa. 344; Knight v. Pugh, 4 W. & S. 445; Hey v. Frazier, 1 Mona. 759.
    The notes in suit are those of the Gardner Shingle Company, Limited: Sharpe v. Bellis, 61 Pa. 69; DeRoy v. Richards, 8 Pa. Superior Ct. 119; Falk v. Moebs, 127 U. S. 597 (8 Sup. Ct. Repr. 1319) ; Hitchcock v. Buchanan, 105 U. S. 416; Slawson v. Loring, 87 Mass. 340; Tripp v. Swanzey Paper Co., 30 Mass. 291; Fuller v. Hooper, 69 Mass. 334; Second Nat. Bank v. Midland Steel Co., 155 Ind. 581 (58 N. E. Repr. 833) ; Means v. Swormstedt, 32 Ind. 87 ; Hood v. Hallenbeck, 7 Hun (N. Y.), 362; Aggs v. Nicholson, 1 H. & N. 165.

      Harry Alvan Hall, with him W. W. Barbour and Eugene H. Baird, for appellees.
    — A note or bill signed by an individual who adds to his name the title “administrator,” “executor” or “ guardian ” will be considered his personal contract, and the addition a mere description personae: Tassey v. Church, 4 W. & S. 346.
    May 23, 1906:
   Opinion by

Mobbison, J.,

This is an action of assumpsit brought to recover the amount of two certain promissory notes, against the defendants as general partners.

On September 26, 1900, the defendants attempted to form a limited partnership, under the provisions of the Act of June 2, 1874, P. L. 271, and the supplements to the said act. The defendants entirely failed to sign, acknowledge, and record a statement in writing in accordance with the provisions of said act. Subsequently, on February 28, 1901, an attempt was made to amend the articles of association by increasing the capital from $12,000 to $30,000, but this statement was not signed by any of the partners, except A. M. McClain. On account of the palpable defects in both statements in not sufficiently describing the property contributed by the partners, and because the amended statement was not signed as required by law, the learned court below correctly held that the defendants were liable as general partners.

In Eliot v. Himrod et al., 108 Pa. 569, the Supreme Court, Mr. Justice Trunkey, p. 580, said : “ Each partner is liable, unless saved by statute. If the partners have not complied with the statutory requirements, a limited partnership association has not been formed. Where there is no record of a proper statement, there is no statutory association. Where the chief requisite in the recorded statement is false, the partners who misstated the fact have no shield against the rule at common law respecting their liability for debts.”

In Vanhorn v. Corcoran, 127 Pa. 255, it is held as stated in the syllabus : “ Parties doing business as a limited partnership under a defective certificate of organization, are liable as general partners to a common-law action, and creditors are not confined to the remedy provided by section 2, of the act of June 2, 1874.” See also Hill v. Stetler, 127 Pa. 145.

In Haslet et al. v. Kent et al., 160 Pa. 85, the members of a so-called limited partnership were held liable as general partners because their property contributed had not been scheduled and valued as the act of May 1, 1876, directs.

In Maloney et al. v. Bruce et al., 94 Pa. 249, it was held as stated in the syllabus : “ If partners seek to have all the advantages of a partnership, and yet limit their liability to creditors, they must comply strictly with the act of June 2, 1874.” See also Blumenthal Bros. & Co. v. Whitaker, 170 Pa. 309.

. In First Nat. Bank v. Creveling, Miles & Co., 177 Pa. 270, members of an attempted limited partnership were held liable as general partners on account of a defective certificate under the act of 1874 and its supplements.

In Lee & Bacchus v. Burnley et al., 195 Pa. 58, it was held: “ Each partner of a limited partnership association is liable unless saved by statute. If the partners have not complied with the statutory requirements, a limited partnership has not been formed.”

We might multiply the citation of decisions upon this question but it is unnecessary as it clearly appears, from the record, and it was conceded at the argument, that these defendants had not complied with the act of 1874, and that they were liable as general partners to bona fide creditors of the Gardner Shingle Company, Limited.

The learned court flatly held that the defendants were liable as general partners and then fell into error in measuring the rights and liabilities of the parties to this suit as if the defendant was a legal limited partnership. Upon this question the learned court said: “ So we say in this case, the bank was bound to know that in order to create a valid debt or obligation of the company, the debt must have been contracted by a manager as provided in the act of May 10, 1889.”

“We are of the opinion that these notes were the individual notes of A. M. McClain and George A. McClain. The association’s name does nob appear in them, and in order to bind it the name of the association must appear in the body of the notes, or the name of the association should have been signed to the notes.”

This ruling of the court is, we think, clearly erroneous. First, the suit was upon two several promissory notes, each one of which was less than $500. Second, the notes were signed by George A. McClain, secretary, and A. M. McClain, treasurer, and it is conceded that both of these partners had been appointed managers of the Gardner Shingle Company, Limited. We will here copy one of the notes and they are both precisely alike, except as to amount and time of payment:

“ $215.75 Ridgway, Pa., Nov. 26,1902.
“ Gardner Shingle Company, Ltd.
“ Three months after date we promise to pay to the order of The Abbey Press Two hundred and fifteen, 75-100 dollars, at Elk County National Bank, without defalcation, value received.
“Gbobghs A. McClain A. M. McClain,
“ Secretary. Treasurer.”

The 20th section of the Act of May 16,1901, P. L. 194, provides : “ Where the instrument contains or a person adds to his signature words indicating that he signed for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.”

Iif our opinion, the notes in suit plainly indicate upon their face that they were the notes of the Gardner Shingle Company, Limited, and being in writing, and signed by two of the partners, one as secretary and the other as treasurer, conclusively indicate that these persons did not make and execute the paper in their individual capacity. The note being that of the Gardner Shingle Company, which we have- already seen was in law a general partnership, and the signatures, being George A. McClain, secretary, and A. M. McClain, treasurer, the question at once arises, of what were they secretary and treasurer ? Upon the face of this note but one answer can be made: that they were secretary and treasurer of the Gardner Shingle Company. Now, having found that the three members of that company were hable as general'partners, it follows under well settled rules of law, that one or more of these partners could execute and deliver valid promissory notes within the apparent scope of the business of the partnership. It is not necessary to cite cases sustaining the proposition that each member of a general partnership is the agent of the firm in the transaction of business in which the firm is engaged. It is a conceded fact that the notes in suit are negotiable, and that the plaintiff is a holder of the same, bona fide for value, and without notice. Nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of the holder of negotiable paper taken before maturity : Moorehead v. Gilmore, 77 Pa. 118 ; Lancaster County National Bank v. Garber, 178 Pa. 91.

“ A partner may enter into contract in the ordinary business of the firm, sell or pledge goods, draw, negotiate, indorse or accept bills or other negotiable securities, and do any other acts incident or appropriate to such trade: ” Hoskinson v. Eliot et al., 62 Pa. 393 ; Rice v. Jackson et al., 171 Pa. 89.

In Phelan v. Moss, 67 Pa. 59, it was held as stated in the syllabus : “ A holder of a negotiable note, bona fide for value, without notice, can recover it, notwithstanding he took it under circumstances which ought to excite the suspicions of a prudent man. In order to destroy such, holder’s title, it must be shown that he took the note, mala fide.”

In the present case there is not a particle of evidence, and it is not contended, that the plaintiff is not a bona fide holder of the notes, without notice, and in fact the only question raised by the defendants at the trial and seriously urged at the argument, is that the notes were the individual obligations of A. M. McClain and George A. McClain, and not the notes of the co-partnership,, the Gardner Shingle Company, Limited.

As we have already said, we are unable to see how it can be seriously contended that the notes in question do not show on their face that they were the notes of the partnership, the Gardner Shingle Company, Limited.

In Montour Iron Co. v. Coleman, 31 Pa. 80, one of the instruments sued on was as follows :

“$3,904.00 October 20, 1854.
“ Sixty days after date, pay to the order of Messrs. Coleman and Kelton, Thirty-nine hundred and four dollars, value received, and place to the account of
“ Coleman & Kelton.”
“No. 1. To Thos. Chambers, Esq., Pres’t. Montour Iron Co., Philadelphia.
“ Endorsed, Coleman & Kelton.”
Across the face of this was written:
“ Accepted, payable at the Girard Bank.
“ Thomas Chambees, Pres’t.”

The defendants objected that the instruments showed the promise of Thomas Chambers only and not of the defendants; but the court gave, judgment for the plaintiff below against the Montour Iron Company, and this judgment was affirmed by the Supreme Court.

In DeRoy et al. v. Richards, 8 Pa. Superior Ct. 119, we held as stated in the syllabus: “ The rule is that the name of the principal intended to be charged must appear on the paper. If it be intended to charge a maker „or indorser in a representative capacity, this must be indicated with sufficient certainty, so that subsequent purchasers and indorsers may be informed of the fact.”

In Carpenter v. Farnsworth, 106 Mass. 561, a check drawn on the Boston National Bank, a copy of which is as follows:

“$19.20.
iEtna
Mills
“ Boston National Bank.
“Boston, September 9, 1879.
“ Pay to L. W. Chamberlain or J. E. Carpenter or order nineteen and twenty onehundreths dollars.
“ I. D. Farnsworth, Treas.”

was held to be the check of the iEtna Mills, and therefore binding upon the corporation, and not the- treasurer, Farnsworth, personally. On this subject see Falk et al. v. Moebs, 127 U. S. 597 (8 Sup. Ct. Repr. 1319.

In Hitchcock v. Buchanan, 105 U. S. 416, a bill of exchange was drawn:

“ Office of Belleville Nail Mill Company.
“ $5,477.13 Belleville, Ills.
“ December 15, 1875.
“ Four months after date pay to the order of John Stevens,
’ Jr., Cashier, Fifty-four hundred and seventy-seven and 13/100 dollars, value received, and charge same to account of Belle-ville Nail Mill Company.
“ William C. Buchanan, Pres’t.
“James C. Waugh, Secr’y.
“ To J. H. Piper, Treas.,
“ Belleville, Ills.”

Mr. Justice Gray

delivered the opinion of the-court:

“ The bill of exchange declared on is manifestly the draft of the Belleville Nail Mill Company, and not of the individuals by whose hands it is subscribed.

“ Where the name of the principal appears on the face of the instrument an indorsement by an authorized agent with the descriptive words : ‘ Treasurer,’ ‘ President,’ ‘ Agent-,’ etc., will be a sufficient indorsement to bind the principal: ” 1 Am. & Eng. Ency. of Law (1st ed), 389.

These and other authorities, in pur opinion, establish, beyond question, a plain intention on the’ face of the paper to bind the Gardner Shingle Company, Limited, and not the individuals who signed as secretary and treasurer. . ■

The learned court below seems to have attached some importance to the fact that A. M. McClain was present at the trial and that the plaintiff might have called him to establish the fact that the limited partnership got the benefit of the notes, but we think the court misapprehended the situation of the case at the time. The plaintiff had made a prima facie case and there was nothing shown to rebut it, and, in our opinion, the court ought to have directed a verdict in favor of the plaintiff.

We have given the able and concise argument of the learned counsel for the appellees careful consideration and have noted their position: “ That the notes are primarily the individual notes of A. M. McClain and George A. McClain; They are not negotiable as notes of the Gardner Shingle Company, Limited. In order to hold that company or J. K. Gardner liable, the burden of proof is upon the plaintiff to show that the notes were given for a consideration or by authority, and this has not been attempted.”

But we are unable to agree with this contention. In view of the fact that A. M. McClain, George A. McClain and J. K. Gardner attempted to form a limited partnership under the provisions of the Act of June 2,1874, P. L. 271, and that they filed a statement, signed, sealed and recorded, containing the following : “ The names of the officers of the association selected in conformity with the provisions of the said acts of assembly are as follows: The managers are James K. Gardner, A. M. McClain and George A. McClain. The chairman is A. M. McClain. The secretary is George A. McClain. The treasurer is A. M. McClain,” we do not think it lies in the mouth of James K. Gardner to deny his liability for the payment of notes, executed and delivered by the other two managers, such paper having upon its face “ Gardner Shingle Company, Limited.” When the defendants failed in establishing a' limited copartnership and became, under the law, general partners, we think, under the Acts of June 2,1874, P. L. 271, May 1, 1876, P. L. 89, and of May 10,. 1889, P. L. 188, James K. Gardner cannot now be heard to assert that the paper in suit is not that of the firm, and that he is not legally bound for its- payment.

The assignments of error must all be sustained and in view of the fact that the plaintiff’s case was made out by written and undisputed evidence, the learned court ought to have given a binding instruction in favor of the plaintiff. The law required this instruction from the court and a verdict in favor of the plaintiff for the full amount of its claim.

The learned counsel for the plaintiff contends that we should enter judgment in favor of the plaintiff for the amount of its claim, but the record is in no condition to do this. When the judgment is reversed, and the verdict for defendants set aside, there is nothing on the record upon which we can enter a final judgment. No question was reserved, and no motion was put upon the record as is provided by the Act of April 22, 1905, P.L. 286.

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


text:
    Merchants and Traders Bank, Appellant, v. Gardner.

      Limited partnership association — Statement of claim — Promissory notes.

    In an action on a promissory note which shows on its face' the name of a limited partnership association, and is signed by two individuals, one as secretary and the other as treasurer, and the object of the suit is to hold all the members of the association liable as general partners, it is not necessary to aver in the statement of claim that the defendants had not complied with the provisions of the Act of June 2, 1874, P. L. 271.
    Argued March 7, 1906.
    Appeal, No. 17, March T., 1906, by plaintiff, from judgment of C. P. Elk Co., Oct. T., 1903, No. 41, on verdict for defendants in case of Merchants & Traders Bank v. J. K. Gardner, A. M. McClain and George A. McClain, trading as the Gardner Shingle Company, Limited.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beayer, JJ.
    Reversed.
    Assumpsit on a promissory note.
    The opinion of - the Superior Court states the case.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendants.

      Fred H. Ely, for appellants.

      Harry A Ivan Hall, with him W. W. Barbour and Eugene H. Baird, for appellees.
    May 23, 1906:
   Opinion by

Morrison, J.,

This is an action of assumpsit brought to recover on four certain promissory notes alleged to have been executed and delivered by the defendant partnership. The learned court gave a binding instruction in favor of the defendants.

The declaration is upon the notes and is against the defendants as general partners, and the only substantial difference between this case and the Chatham National Bank v. the same defendants in which we have this day filed an opinion reversing the judgment, etc., at ante page, 135, is that in the latter case the declaration set out the reasons why the defendants were liable as general partners and not as a limited partnership. This reason seems to have controlled the learned court below .in holding in the present case that the defendants are a limited partnership organized under the act of June 2, 1874, and its supplements. The learned court said: “ While this suit is brought against the defendants as general partners, there is no averment in the plaintiff’s statement or amended statement that they did not comply with the provisions of June 2, 1874 and its supplements. Consequently there canbe.no recovery against them as general partners in this suit.” The same learned judge had held in Chatham National Bank v. the same defendants, supra, that the defendants were liable as general partners because of the palpable defects in both statements in not sufficiently describing the property contributed by the partners, and because the amended statement was not signed as required by law. In that case we have held that this ruling is correct, and that the defendants, for the reasons stated by the learned court, are liable as general partners.

In the present case they were sued and declared against as general partners and, in our opinion, it was not necessary for the plaintiff to set out in the declaration the reasons why the defendants were so liable. The form of the suit and the declaration gave them ample notice that the plaintiff was attempting to hold them as general partners, and that is all that was required. In addition, they pleaded to the declaration “non assumpsit,” and went to trial on the merits. We are therefore of the opinion that the learned court clearly erred-» in holding that they were a limited partnership because there was no averment in the plaintiff’s statement or amended statement that' they did not comply with the provisions of the act of J une 2, 1874, and its supplements.

In the opinion filed in Chatham National Bank v. the same defendants, supra, we have given reasons and cited authorities which we consider sufficient to warrant a recovery in the present case, and we intend that opinion to apply to this case, and, therefore, it is unnecessary to repeat what was there said.

The assignments of error in the two cases are similar, except the first and eleventh in the present case. The first assignment is: “ The court erred in its answer to plaintiff’s first point which point and answer is as follows :

“ 1. The statements filed by the Gardner Shingle Company, Limited, are insufficient to enable the defendants, A. M. McClain, George A. McClain and J. K. Gardner, to escape personal liability for the debts contracted by the defendants. Refused.” Under the undisputed evidence we think this assignment must be sustained.

The eleventh assignment is: “ The court erred in overruling plaintiff’s objection and admitting testimony as follows:

“ Q. (The four notes offered in evidence as the basis of this action shown witness.) Look those over, Mr. Gardner. State, Mr. Gardner, whether those notes were issued with your knowledge or consent as a member of the Gardner Shingle Company, Limited. Counsel for plaintiff objects as incompetent, irrelevant and immaterial. By the court: Objection overruled, evidence admitted, and bill sealed for plaintiff. C. A. Mayer, P. J. [Seal]. A. They certainly were not. I never saw them before. I don’t know anything about them.”

The four notes in the present case are precisely alike, except as to amounts and times of payment, and they are like the notes in Chatham National Bank case, ante, and we have there undertaken to show that the defendants were general partners and that the notes were those of the firm, the Gardner Shingle Company, Limited, and that all three of the defendants are personally liable for the payment thereof. This being so it ifollows that the testimony quoted in the eleventh assignment was incompetent and immaterial, and it ought to have been excluded. The notes in suit were issued by two members of the firm, and were discounted by the plaintiff before maturity, and without notice of any defense whatever, and, therefore, it was no defense for Mr. Gardner to testify: “ I never saw them before. I don’t know anything about them.” The eleventh assignment is sustained.

For the reasons given in Chatham National Bank all of the other assignments must be sustained.

In view of the fact that the plaintiff’s case was made out by written and undisputed evidence, the learned court ought to have given a binding instruction in favor of the plaintiff. The law required this instruction from the court and a verdict in favor of the plaintiff for the full amount of its claim.

The learned counsel for the plaintiff contends that we should enter judgment in favor of the plaintiff for the amount of its claim, but the record is in no condition to do this. When the judgment is reversed, and the verdict for defendants set aside, there is nothing on the record upon which we can enter a final judgment. No question was reserved, and no motion was put upon the record as is provided by the Act of April 22, 19#5, P. L. 286.

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


author: Beaver, J.,

text:
    Commonwealth v. Tryon, Appellant.

      Criminal law — Banks and banking — Receiving deposits when insolvent— Charge.

    On the trial of an indictment against a banker for accepting a deposit when insolvent, the prisoner cannot complain that the trial judge failed to give due prominence to the question of the prisoner’s knowledge of the insolvency, where the court in the course of its charge said: “If he did not have such knowledge, if he believed honestly, as a prudent man in his position would, that he had sufficient assets to be converted into cash that would meet his obligations, then he would not be guilty of the offense charged. This is a question of fact for you from the testimony in the case. ”
    On the trial of such an indictment it is proper to permit the commonwealth to show that the defendant was engaged in a mercantile business, and that as soon as any money was received in this business, he hastened to transfer it to the bank in order to meet incoming checks.

      Trial — Objection to evidence — Practice, C. P.

    A trial court ought not to be convicted of error for doing or not doing that to which no objection was made at the time, and no request subse- . quently to rectify.

      Evidence — Witness—Expert—Land value.-

    A witness is not qualified as an expert as to the value of real estate in a borough where his only knowledge is based on information which he had received as to the rental of the real estate in question, without any knowledge as to the condition of the property, or as to its need of repair, and without anything to show that his information as to rental was correct.
    The books of assessment of a borough are not evidence to fix values of real estate in the borough.
    Argued. March 12, 1906.
    Appeal, No. 100, April T., 1906, by defendant, from judgment of Q. S. Crawford Co., May T., 1905, No. 17, on verdict of guilty in case of Commonwealth v. D. W. Tryon.-
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beayer; JJ.
    Affirmed.
    Indictment against a banker for accepting deposits when insolvent. Before Thomas, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1-8) rulings on evidence referred to ' in the opinion of the Superior Court; (5, 6) in refusing a new trial “ when the evidence Avas overwhelmingly in favor of the defendant as to his actual knowledge of his, and the bank’s insolvency, at the time of the commission of the offense charged.”

      Wesley B. Best, with him Alfred G. Qhurch, for appellant.

      O. Viator Johnson, district attorney, -with him Gerry T. Kincaid, for appellee.

      May 23, 1906:
   Opinion by

Beaver, J.,

The defendant’s counsel make their principal argument for a reversal upon the fifth and sixth assignments of error, which both relate to the refusal to grant a new trial, and this upon the ground that, “ The evidence was overwhelmingly in favor of the defendant as to his actual knowledge of his, and the bank’s, insolvency at the time of the commission of the offense charged.”

Several careful readings of the charge of the court and of its opinion, refusing to grant a new trial, have failed to raise in our mind even a suspicion of bias or prejudice on the part of the court against the defendant. Wherever the testimony of the commonwealth, tending to establish guilt, was called to the attention of the jury, the defendant’s explanation of the facts which might tend to negative the knowledge of his insolvency were at the same time clearly and carefully stated. In commenting upon the testimony as to the amount of the defendant’s assets, not only were the estimates of the witnesses for the commonwealth given, but also those of the defendant himself and of his witnesses, and, in addition, the discrepancy between the estimates of the defendant, as contained in his testimony, and those accompanying his assignments, both as an individual and for the bank, was explained by the court in the charge, so that no prejudice based upon anything except the discrepancy itself would be created in the minds of the Fpy-

The appellant’s counsel, in their argument, say : “ Our main contention is that the vei’dict was wholly against the weight of the evidence, and, while for the sake of argument we may concede that there was some evidence offered on the part of the commonwealth making it necessary for the jury to pass upon it and that offered by. the defendant, especially as the jury is to judge both of the law and the facts, we respectfully submit, and conscientiously believe, that the testimony as a whole was almost overwhelmingly in favor of the defendant.”

If such was the fact the jury had the benefit of it in the charge of the court. It was fair, calm, lucid, judicial. The court gave due prominence to the knowledge of the insolvency, upon which the appellant’s counsel particularly dwell, saying: “ If he did not have such knowledge, if he believed honestly, as a prudent man in his position would, that he had sufficient assets to be converted into cash that would meet his obligations, then he would not be guilty .of the offense charged. This is a question of fact for you from the testimony in the case.”

The witness Houghtailing, the rejection of whose testimony as a real estate expert is complained of in the first assignment-of error, failed to show any such knowledge of the value of real estate in Spartansburg as qualified him to give an opinion. The only ground upon which he attempted to qualify was the information which he had received as to the rentals of the real estate. Whether the information was correct did not appear,' and the condition of the property, as to need of repair, etc., which necessarily entered into the question of value, was not given. He clearly had not sufficient knowledge of the value of property in that neighborhood to testify as an expert: Friday v. Penna. R. R. Co., 204 Pa. 405 ; Grier v. Homestead Boro. 6 Pa. Superior Ct. 542.

Nor do we see any error in the refusal of the court to allow the books of assessment of Spartansburg borough to be offered in evidence to fix values : Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279.

We confess to some difficulty, at first sight, with the second assignment of error, relating to the reception of the testimony of Emory Blakeslee, a former partner of the defendant in the grocery business. He was asked: “ Q. When you were in the grocery store, what was done by Mr. Tryon relative to the funds in the store ? Defendant’s counsel: What is the object of this? Commonwealth’s counsel: What was done relative to the money in the grocery store, relative to depositing it in the bank ? Defendant’s counsel object. I do not think it is relevant. Commonwealth’s counsel: For the purpose of showing that Mr. Tryon was short in the bank and was trying to transfer the funds in the grocery business into the bank to pay checks that came into the bank. Defendant’s counsel object. By the Court: Bill of exceptions sealed for the defendant. Commonwealth’s counsel: Q. What did Mr. Tryon do ? Witness : What about ? Counsel: With the funds of the partnership ? A. As fast as we took in money he wanted it right over in the bank. Q. He wanted to get it in the bank? A. Yes, sir. Q. What did he do ? A. Why, he deposited it there.” This ended the testimony embraced in the offer which was both competent and relevant.

There was some testimony later as to a conversation between defendant and the witness as to a division of the money after the partnership bills were paid, and as to the reasons which induced him to make tins proposition. This testimony was clearly not embraced hi the offer. It was not the subject of any new offer. No. objection was made to it and no exception taken; nor was any motion made to strike it out. The court below, therefore, ought not to be convicted of error for doing or not doing that to which no objection was made at the time and no request subsequently to rectify. This, in our opinion, satisfactorily disposes of this assignment.

Viewing the record in its entirety, we cannot see that we are called upon to interfere.

Judgment affirmed, and the record remitted, to the end that the sentence of the court below may be carried into effect.


text:
    Meachem v. Coraopolis Borough, Appellant.

      Negligence — Boroughs—Defective sidewalk — Constructive notice. -

    In an action by a woman against a borough to recover damages for personal injuries sustained by a fall on a defective board walk, the question of the constructive notice to the borough of the condition of the sidewalk is for the jury where the plaintiff testifies that the board walk was old and in bad condition for three years before the accident, and a neighbor testified that the walk was broken and rotten, and had been so for a year before the accident. ,
    Argued May 10, 1906.
    Appeal, No. 132, April T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1905, No. 751, on verdict for plaintiff in case of Sarah Meachem v. Coraopolis Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    The opinion of the Supreme Court states the case.

      Verdict and judgment for plaintiff for $500. Defendant appealed.

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

      James L. Adams, for appellant,
    cited : Lohr v. Phillipsburg Borough, 165 Pa. 109.

      W. T. Tredway, for appellee,
    cited: Nanticoke Boro. v. Warne, 106 Pa. 373 ; Markle v. Berwick Boro., 142 Pa. 84.
    May 23, 1906:
   Opinion by

Beaver, J.,

The appellant thus states the first question involved in this case: “Was there sufficient evidence of constructive notice to the borough defendant of the defective sidewalk to submit to the jury ? ” If this be answered in the affirmative, it follows that the request for binding instructions was properly refused.

An examination of the testimony leaves no doubt of the fact that, the testimony being believed, the defendant had at least constructive, if not actual, notice of the defective character of the sidewalk upon which the plaintiff was injured. The testimony of the plaintiff in her examination in chief, emphasized in the cross-examination, was that the boardwalk was old and in bad condition from the time she came to live in the neighborhood — three years before the accident. A neighbor, Mrs. Curtis, testified that the walk was broken and rotten- and had been so a year before the accident.

It may be well to remark that the question of contributory negligence is not raised.

If the jury believed the testimony, of plaintiff’s witnesses, they were justified in finding that defendant had constructive notice of the defect in the sidewalk and, under such evidence, as was said in McClosky v. Dubois Boro., 4 Pa. Superior Ct. 181, “it would have been error to withdraw the question of notice from the jury.” The facts in that case, as in this, clearly distinguish both from Lohr v. Boro. of Philipsburg, 165 Pa. 109.

The assignments of error are all overruled. Judgment affirmed.