text:
    Kile v. Kilner, Appellant.

      Married women — Promissory note — Principal and surety.

    A promissory note under seal was signed by a married man as principal and by another person designated as “bail.” When the note became due the principal was ill and confined to his house. A renewal note was sent to him by the bank which held the original note, and he requested his wife to sign the renewal note. She complied with his request, signing her own name. After the death of her husband she sent the note to the bail who signed the note after the wife’s signature again designating himself as “bail.” The new note was accepted by the bank as payment of the old note, and the old note was surrendered to the wife. Upon maturity of the new note the bail was compelled to pay it, and thereupon brought suit against the widow. Held, that the widow was liable to the bail for the amount of the note.
    Argued May 13, 1908.
    Appeal, No. 89, April T., 1908, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1905, No. 304, on verdict for plaintiff in case of William Kile v. Harriet Kilner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit by a surety against a principal on a note under seal. Before Williams, P. J.
    At the trial it appeared that the note was in the following form:
    “$150.00 ■ Mercer, Pa., Feb’y 29, 1904.
    “ Four months after date we, or either of us, promise to pay to The Farmers’ and Mechanics’ National Bank, Mercer, Pa., one hundred fifty dollars. • -
    “Value received.
    “And in case of default of payment at maturity, an additional five per cent attorney’s commission for collection of •the same. And we hereby authorize and empower any attorney of any court of record within the United States or elsewhere to appear for us, and after one or more declarations filed, confess judgment against us in any court of record in the state of Pennsylvania or elsewhere, at any time either before or after this obligation falls due, for the above amount, together with the said five per cent attorney’s fees, with costs of suits, release of errors, and without stay of execution; and for value received we jointly and severally do waive the right or benefit of any law of this or any state exempting property, real or personal, from sale; and if levy is made on land we jointly and severally do also waive the right of inquisition, and consent to the condemnation thereof, with full liberty to sell the same on fi. fa. with release of errors thereon.
    “$3.00 -[l.sJ
    “No. 64,680 F Harriet Kilner, [l. s.]
    “ Due June 29 William Kile, Bail, [l. s.]”
    It is indorsed on the back as follows:
    “Mercer, Pa., Nov. 9, 1904.
    “ For value received I hereby assign this note to William Kile without recourse in any event.
    “R. C. Kerr, Cash.”
    On the note was indorsed a warrant of attorney to confess judgment.
    Other facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $180.40. Defendant appealed

      Error assigned amongst others was in entering judgment for plaintiff on the verdict.

      W. W. Moore, with him J. W. Bell, for appellant.
    All the authorities go to show that at law accepting of a security of equal degree, either from the debtor himself or from a stranger, at the instance of the debtor, is no extinguishment of the first debt: Oliphant v. Church, 19 Pa. 318; Brown v. Scott, 51 Pa. 357; Hunter v. Moul, 98 Pa. 13; Kearney v. Nat. Bank, 129 Pa. 577; Bixler v. Lesh, 6 Pa. Superior Ct. 459; Levan v. Wilten, 135 Pa. 61; Griffee v. Griffee, 173 Pa. 434; Berlin Iron Bridge Co. v. Bonta, 180 Pa. 448; Collins v. Busch, 191 Pa. 549.
    The note in question in this case is void as to the defendant for want of consideration, it not being contended on the part of the plaintiff that there was any such consideration as is recognized in law as sufficient: Carpenter v. Bank, 106 Pa. 170; Rathfon v. Locher, 215 Pa. 571.
    The holder of an accommodation note, pledged as collateral security for an antecedent debt, is not a purchaser for value, and the note in his hands may be impeached for fraud in its making or procurement: Cummings v. Boyd, 83 Pa. 372; Patrick & Co. v. Smith, 165 Pa. 526; Wiltbank v. Tobler, 181 Pa. 103; Harper v. O’Neil, 194 Pa. 141; Rathfon v. Locher, 215 Pa. 571; Weigle v. Mercer, 1 Pa. Superior Ct. 490; Bank v. Short, 15 Pa. Superior Ct. 64; Jaquett v. Allabaugh, 16 Pa. Superior Ct. 557.

      J.B.W. Baker, for appellee.
    July 15, 1908.
   Opinion by

Beaver, J.,

Kile, the use plaintiff here, was bail for the husband of the defendant upon a note under seal, in the Farmers’ & Mechanics’ National Bank, Mercer, Pennsylvania. About the time of its maturity a new note was sent to Kilner, the husband, who was at that time ill and in a nervous condition. He requested his wife to sign the note and send it to Kile for his signature. The wife signed her own name instead of that of her husband and, after his death, sent the note to Kile.

The special verdict of the jury finds certain facts important to be borne in mind, as follows: “We find that Harriet Kilner signed the note before the death of William Kilner. We decided William Kile signed the note after William Kilner’s death, not knowing when Harriet Kilner signed it.”

The bank, upon the presentation of the new note signed by the defendant and the use plaintiff, accepted it as payment of the old note and surrendered it to the defendant, stamping it paid March 22, 1904. Upon the maturity of the note in controversy, it was paid by the plaintiff and assigned to him by the bank.. Judgment was entered thereon for his use against the defendant, and upon her application, after testimony and hearing, judgment was opened and she permitted to make defense.

At the trial the death of William Kile, the use plaintiff, was suggested and his heirs substituted.

The jury found for the plaintiff, and, upon motion for judgment n. o. v. upon the whole record, on the ground that the defendant was not liable, being a married woman at the time the note was signed by her, judgment was entered upon the verdict.

The question is as to the liability of the defendant, in view of her coverture, when the note was signed, it being contended by the plaintiff that, as between him and the defendant, she is liable, because he was bail for her, and signed the note as such after the death of the husband, without knowledge of the fact that the note had been signed by her prior to his death.

The facts attending the execution of the note by the defendant are contained in the testimony of her son and daughter, who were apparently the only persons present beside herself and her husband, when the subject was discussed. The testimony of William Kilner, the son, is as follows: “Q. Now, after taking this letter out of the box, from the Farmers’ & Mechanics’ Bank, and addressed to your father, what did you do with it? A. I took it down to the house and gave it to my mother. Q. Were there any other persons present when you delivered this letter to your mother? A. Yes, sir, quite a number in the kitchen there; eight or ten. My brother was there, and my sister was there, and another sister, Mrs. Adams now, and an aunt or two. Q. What did your mother do with the letter, after you handed it to her? A. She opened the letter and took it in to my father, and I followed her in; and he told her to take it out and sign it and take it down to Mr. Kile and he would sign it, and send it to the bank. Q. What did she take out of the envelope? A. A note for $150.”

The daughter, Mrs. Rhoda Barr, says: Q. Do you remember of your brother William having brought a letter down to the house from the Farmers’ & Mechanics’ Bank addressed to your father? A. I do. Q. When he brought that letter to the house, to whom did he give it? A. To mother. Q. What did your mother do with it? A. She opened it and took it in to father and asked him what she should do with it, and he said it was a note for Mr. Kile and it would be all right for her to sign it and take it down to Mr. Kile, or give it to one of the boys and take it down, and Kile would sign it and it would be all right. Q. Did you see the note? A. I saw the piece of paper. Q. What was the form of the paper that you saw? A. Just a slip of paper. I knew it was a note from the form, but I didn’t know the exact amount. Q. What did your mother do after your father had told her what you have stated? A. She took it to the kitchen and laid it on the table and signed it, and put it in the envelope and gave it to Charles and told him to take it down to Mr. Kile and have him sign it.”

That Kile was the bail upon the note signed by the defendant is not, as we understand the testimony, denied. He signed it as bail and, having signed it after the death of William Kilner, he became thereby the bail of the defendant.

What the legal effect of the use of this note may have been, if nothing had been said in regard to its use and application, is not very important. As a matter of fact, the defendant, through her son Charles, used it in payment of the original note upon which her husband was principal and Kile, the use plaintiff here, the bail. The bank accepted it as payment, stamped the old note paid and sent it by the defendant’s son to her. It was produced on the trial as coming from the defendant. The note having- thus been used and accepted as payment, the old note was extinguished, as the stamped indorsement of payment showed, and there was no legal liability thereunder by anyone: Bixler et al. v. Lesh, 6 Pa. Superior Ct. 459.

In the married woman’s Act of June 8, 1893, P. L. 344, the second section provides: “Hereafter a married woman may, in the same manner and to the same extent as an unmarried person, make any contract in writing, or otherwise, which is necessary, appropriate, convenient, or advantageous to the exercise or enjoyment of the rights and powers granted by the foregoing section, but she may not become accommodation indorser, maker, guarantor or surety for another, and she may not execute or acknowledge a deed, or other written instrument, conveying or mortgaging her real property, unless her husband join in such mortgage or conveyance.”

In Herr v. Reinoehl, 209 Pa. 483, Mr. Chief Justice Mitchell comments very fully upon this act. He says: “It has long been settled that a married woman may mortgage her real estate for her husband’s debt or for future advances to him. The basis of the rule is stated in Kuhn v. Ogilvie, 178 Pa. 303. The question of her transfer of her personal property for the same purpose did not arise at common law, as by marriage her goods and chattels became the husband’s. But after the Act of April 11, 1848, P. L. 536, by which 'every species and description of property’ continued to be hers 'as fully after marriage as before,’ it was held in Lytle’s Appeal, 36 Pa. 131, that an assignment by husband and wife of the latter’s chose in action was valid, though made to indemnify the indorser of the husband’s note. And in Kulp v. Brant, 162 Pa. 222, it was said by our Brother Dean, 'It has so often been decided that a married woman may assign her personal property as security for her husband’s debts .... that it is useless to again cite the authorities.’

“The Act of June 8, 1893, P. L. 344, has not changed the law in this respect: Kuhn v. Ogilvie, 178 Pa. 303; Dusenberry v. Ins. Co., 188 Pa. 454; Peter Adams Paper Co. v. Cassard, 206 Pa. 179. That act is an enabling act, and is not to be construed as narrowing a married woman’s contractual capacity, except where the intent to do so expressly appears. The provision in which such intent is claimed to be found is in section second, which after authorizing her to make any contract in furtherance of the general power granted in the preceding section, enacts 'but she may not become accommodation indorser, maker, guarantor or surety for another.’ This has been held to apply only to the technical contract of indorsement, guaranty or suretyship included in the words of the act, Dusenberry v. Insurance Co., 188 Pa. 454, though it will be held to cover a manifest device to evade the prohibition, such as was before the court in Patrick & Co. v. Smith, 165 Pa. 526. But what the statute prohibits is the incurring of a personal liability for the forbidden purpose, a liability which carries the risk of a general judgment. This clause was 'a cautionary provision against too liberal a construction of the very large powers conferred by the first part of the section, a saving of the previously existing disability so far as it covered the particular class of contracts specified:’ Kuhn v. Ogilvie, 178 Pa. 303. The pledge of specific property whether real or personal was within her previously existing powers, and these, as heretofore said, were not narrowed by what was intended as an enabling statute to enlarge them.”

Whatever William Kilner may have meant in asking his wife to sign the note, whether with his name or her own, she signed it as principal, not as indorser, not as guarantor, not as surety, and William Kile, the note being presented to him after the death of the husband of the maker, became her bail and not that of her former husband.

We do not now decide, because it is not necessary to do so, what effect the signing by Kile as bail would have had, if the note had been signed by him before the death of Kilner.

We are of the opinion that the court below, under all the authorities, properly construed the obligation, and inasmuch as it was used for the payment of the previous note, on which the defendant’s husband was the principal maker, the defendant (the bail having paid the note and taken an assignment thereof) was liable for the amount.

It follows that the refusal of the court to enter judgment for the defendant n. o. v. and the entry of it upon the verdict in favor of the plaintiff, was correct.

This practically disposes of all of the assignments of error, although they are not taken up seriatim and discussed separately.

Judgment affirmed.

Porter, Henderson and Orlady, JJ., dissent.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Barnett, Appellant, v. Yeadon Borough.

      Road law — Borough—Discretion of borough authorities — Plan—Evidence — Damages.
    Where borough authorities are vested with a discretion to open and grade a street, and it appears that the street was regularly opened and graded, an abutting owner has no standing to inquire what influences lead the borough authorities to open and grade the street.
    In a proceeding against a borough for damages for opening and grading a street, where the plaintiff has made a claim to extravagant damages based upon the cost of filling up the land to the grade of the street, it is proper to permit the borough to show that the filling up would be a useless expenditure of money, and that the part of the property which the witnesses of the plaintiff thought ought to be filled up at an enormous expense was not worth as much as before the grading of the street, and would not be worth as much after the filling as the witnesses for the plaintiff had said it would cost to fill.
    In a road case for damages against a borough where it appears that plaintiff's predecessor in title had laid out a plan of lots and streets, and had sold lots in accordance with the plan, and that the street in question was on the plan, it is not error to admit the plan in evidence.
    In such a case where it appears that the opening and grading of a street had resulted in two fragments of a highway with a chasm over twenty feet deep through which a railroad passed, separating them, it is reversible error for the court to charge that “in considering damages, the jury must take into consideration the benefits to be derived from the opening of a street as a public highway, and thereby making communication practicable between the parts divided by the railroad.”
    Argued Nov. 20, 1907.
    Appeal, No. 110, Oct. T., 1907, by-plaintiffs, from judgment of C. P. Delaware Co., Sept. T., 1899, No. 61, on verdict for plaintiffs in case of Grace Hoffman Barnett et al. v. Yeadon Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from award of jury of view. Before Johnson, P. J.
    At the trial the court refused under objection and exception evidence as to a borough ordinance, offered for the purpose of showing that Rockland avenue had been opened for the benefit of a street railway company. [1, 2]

      When Samuel J. Cochran was on the stand he was asked this question:
    “Q. How many lots were there — how many lots would-be there of twenty-five feet front? ”
    Mr. Smith: This witness has already testified that in 1899 this property was solely usable for farming purposes, having an enhanced value speculatively, but it was not then used for building purposes. Now, in the face of that testimony to attempt to put on a value as based solely on building purposes is, of course, in flat contradiction of his prior testimony and absurd. I do not think he ought to be allowed to testify to it.
    The Court: He says the value of $33,600 was because it might in the future be converted into building lots. That is the basis of the value. As farm land it would not be worth more than .$100 an acre, probably: I do not see anything inconsistent in it.
    Mr. Robinson: How many lots would that cut up twenty-five feet front?
    Objected to by Mr. Smith for the reasons just stated. Objection overruled. Exception. [2]
    “A. There are 185 feet front on the east side of Rockland avenue between Glenrock avenue and Grant street — there is a street comes in there — a Grant street. Q. That would be how many lots? A. According to the size you made that. Q. Each twenty-five feet front? A. There would be 185 feet in there, front. Q. What would those lots be estimated to be worth before the change of grade?”
    Objected to by Mr. Smith. Objection overruled. Exception. [4]
    “A. Before the change of grade there was no street there was there? but.with Rockland avenue there. Q. Oh, yes, Rockland avenue would be there. A. Five or $6.00 a foot front. These lots could only have been 100 feet deep. With $5.00 or $6.00 a foot front in the condition it was there.”
    On the cross-examination of defendant’s witness, Yarnall, this question was asked • ■

      “ Q. Has any provision been made in the borough of Yeadon for the bridge over that place at Rockland avenue?”

      Mr. Robinson: I desire to object to this.
    The Court: Objection sustained. Exception. [5]
    Mr. Smith: I show you the minute and ordinance book of council and ask you to refer me to any provision that the borough has made for a bridge over the railroad at Rockland avenue.
    Mr. Robinson: Objected to for the reason that it is irrelevant and immaterial.
    The Court: It is not cross-examination. He has not been asked about the paper and inquired of about it. Exception. [6]
    The court admitted in evidence the plan of Palermo, offered on behalf of the' defendant. Exception. [7-9]
    Defendant presented this point:
    4. In considering the damages, the jury must take into consideration the benefits to be derived from the opening of Rockland avenue as a public highway, and thereby making communication practicable between the parts divided by the railroad. Answer: That is affirmed. I have said to you in the general charge you must take into consideration all the benefits that may be derived to this land by the opening of this street. [14]
    Verdict and judgment for plaintiff for $1,240. Plaintiff appealed.

      Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions; (14) above instructions, quoting them.

      Lewis Lawrence Smith, for appellants,
    cited: Harris v. Railroad Co., 141 Pa. 242; Penna. Schuylkill V. R. R. Co. v. Cleary, 125 Pa. 442; Philadelphia Ball Club v. Philadelphia, 192 Pa. 632.

      Isaac E. Johnson and V. Gilpin Robinson, for appellee,
    cited: Rudderow v. Philadelphia, 166 Pa. 241; Patten v. Railway Co., 33 Pa. 426.
    July 15, 1908:
   Opinion by

Porter, J.,

The borough authorities were vested with a discretion to open and grade Rockland avenue, and the record contains no suggestion that there was any irregularity in the manner in which they exercised the power conferred upon them by statute. The avenue having been regularly opened and graded, the only question to be determined in this proceeding was the effect upon the market value of the plaintiff’s property resulting from the work as actually done. It was not material to inquire what influences led the borough authorities to grade and pave the street, and the first and second specifications of-error are overruled.

The evidence admitted under the third specification of error certainly did the defendant no harm, it amounted only to the statement that the part of plaintiff’s property between Glenrock avenue and Grant street contained a frontage on Rockland avenue of 185 feet, a fact which was undisputed and which the plaintiff had already shown. This specification is dismissed.

The learned counsel for the plaintiff had throughout tried his case upon the theory that the land in question was more valuable for building than for farming purposes, and his witnesses had testified to extravagant estimates of damage, which . from cross-examination had been shown to be based largely upon what they had believed it would cost to fill up the land to the grade of the street. The plaintiff had, notwithstanding the objection of the defendant, introduced evidence as to what would be the reasonable cost of grading per cubic yard. The testimony introduced by the defendant, which is the subject of the fourth specification of error, went only to show that the filling up would be a useless expenditure of money, that the part of the property which the witnesses of the plaintiff thought ought to be filled up at an enormous éxpense was not worth as much as before the grading of the street and would not be worth as much after the filling as the witnesses for the plaintiff had said it would cost to fill. This evidence was properly admitted as directly tending to show that the basis upon which the witnesses of the plaintiff had placed their estimate of the damages was altogether erroneous. The fourth specification of error is overruled.

That the borough had not made provision for the erection of a bridge over the railroad was an admitted fact in the case, and the refusal of the court to permit the plaintiff to re-prove that fact by the oral testimony of a particular witness did the defendant no harm. The witness Cockran had not in his examination in chief given any testimony relating to the bridge, and for the defendant to attempt to interrogate him upon that particular point was not within the line of proper cross-examination. The fifth and sixth specifications of error are without merit. The predecessor in title of the plaintiff had laid out this property in a plan of lots and streets, one of which was Rock-land avenue, and had sold lots in accordance with that plan; there was no error in the admission of this plan in evidence. There was evidence that at least a part of Rockland avenue had been opened and actually used by the public, and that fact was properly submitted to the jury, under the conflicting evidence. The seventh, eighth, ninth, eleventh, thirteenth, fifteenth and seventeenth specifications of error are overruled.

The affirmance by the court of the fourth point submitted by the defendant, is the subject of the fourteenth specification of error. The point was in this language, viz.: “In considering the damages, the jury must take into consideration the benefits to be derived from the opening of Rockland avenue as a public highway, and thereby making communication practicable between the parts divided by the railroad.” This point was affirmed without qualification. This ruling manifestly tended to mislead the jury, for the only effect which it could have had upon their minds was to lead them to the conclusion that in estimating the damages they must consider the improvement as having made “communication practicable” between the parts of the land divided by the railroad. The fact was directly the reverse of this; the only improvement which the evidence shows had been contemplated by the borough had been completed, and had resulted in two fragments of a highway with a chasm, over twenty feet deep through which the railroad passed, separating them. There was a theoretical highway and an active pedestrian who could climb down the embankment upon one side of the railroad and up that upon the other side, might have a right to walk across the railroad at grade, but there was no continuous highway at the grade the borough had established. The borough had graded the highway up to the line of the railroad on each side, but it had taken no steps to join these broken fragments, and no bridge may ever be built. This being the case, it was error to affirm the point without qualification. The jury should have been instructed that they were to deal with the conditions actually existing and not with mere possibilities as to what might be done in the future. The fourteenth specification of error is sustained.

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


text:
    Sharpless v. Zelley, Appellant.

      Lease — Lease of machinery — Covenant as to repairs — Rental.
    In an action to recover rental under a lease of machinery, the plaintiff makes out a prima facie case when he proves the execution of the lease, and that the defendant went into possession under it.
    Where a lease of machinery provides that no liability for rent shall be incurred by the lessee until certain repairs have been made satisfactory to the lessee, the question whether the lessee’s objection to the repairs was made in good faith, or was merely capricious, is a question for the jury.
    In such a case the defendant enters into possession and the plaintiff enters into concurrent possession for the purpose of making the repairs, no rent accrues until after the repairs are completed, and the defendant’s concurrent possession has ended. When the repairs are completed and the lessee believes in good faith that the machinery had not been satisfactorily repaired, so that it could be successfully operated, he is not bound to accept it. He may surrender the possession or offer to surrender it, or he may enter into the exclusive possession and make the repairs in accordance with the lease, and defalk the cost of making them from the rent, or he may retain the exclusive possession and deduct from the rent the difference between the rental value of the machinery as it then was, and its rental value as it would have been if the repairs had been properly made. The lessee is not entitled to the exclusive possession without making some compensation. In such a case the measure of damages is not the difference in the cost of operating the plant, since the cost of operating it is not the only element affecting the rental value.

      Where a lease of machinery contained a covenant on the part of the lessor to repair the then existing plant so that the same may be successfully operated, the lessor is bound to repair all the machinery. which then comprises the plant, but he is not required to furnish additional machinery or larger pumps.
    Where the lessee has offered testimony as to the character of the defects to which he objected, the lessor is entitled to show the condition of the machinery at the time he completed the repairs and permitted the lessee to take possession; but it is not permissible to show the general condition of the plant after the lessee had been operating it for a year.
    Evidence as to the work which the lessor had caused to be done in making the repairs to the plant, is admissible, but the amount of money paid out for such work is not so.
    Argued Nov. 20, 1907.
    Appeal, No. 120, Oct. T., 1907, by defendant, from judgment of C. P. Del. Co., March T., 1906, No. 190, on verdict for plaintiffs in case of Serrill J. Sharp-less and Eleanor S. Sharpless, his wife, in right of the wife, v. Leander S. Zelley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for rental of machinery. Before Johnson, P. J.
    At the trial the court ruled that the plaintiff had made out a prima facie case by producing the lease, showing the amount due under it, and when the defendant went into possession. [4]
    When J. K. Phillips, a witness for defendant, was on the stand, he was asked this question:
    “Q. In your opinion, is that plant in such condition as to be satisfactory to you? A. No, sir.”
    Mr. Taylor: I object to that question.
    The Court: Strike out his answer. He was examined yesterday and this suit was brought for rent to January 1, 1906.
    Mr. Ernest Green: You will recollect I asked Mr. Zelley if the plant was in the same condition now as it was when Mr. Sharpless left it, and Mr. Zelley said “yes.” Having introduced that fact in evidence, I think I have a right to ask this witness this question.
    The Court: I do not think the opinion of a man who sees a plant more than eleven months after is evidence.
    To which ruling counsel for the defendant object and pray the court to seal a bill of exceptions thereto, which is accordingly done. [6]
    Mr. Ernest Green:.! ask you as a' practical mortar-mixing man whether or not a mortar-mixing plant in which the sand .conveyers will not convey sand is a satisfactory plant to a reasonable man?
    Mr. Taylor: I object to the question.
    ■ Objection sustained. [7]
    Mr. Ernest Green: I ask you as a practical mortar-mixing man whether or not a mortar plant in which one of the mortar-mixing machines will not work, in which both the sand conveyers will not work, in which one of two slacking machines is not in condition to be used, in which the pumps will not convey enough water to operate the plant, in which the belt conveyer is not in such a condition as it can be run properly, and in which there is not sufficient power to run the plant, is a mortar plant which would be satisfactory to you or to any reasonable man?
    Mr. Taylor: I object to that.
    Objection sustained. [8]
    Mr. Ernest Green: When you were down there yesterday what condition did you find this plant in?
    Mr. Taylor: I object.
    Objection sustained. [9]
    Mr. Ernest Green : I ask you whether or not a mortar plant, in which one of the three mortar machines cannot be used, in which the only sand conveyers there are will not convey sand, in which one of the two slacking machines which there are is not fit for work, in which the pumps will not supply the. necessary amount of water, and in which the belt conveyer will not operate, and in which there is not sufficient power to operate the plant all at once, can be successfully operated by any reasonable man?
    Mr. Taylor: I object to that question.
    The Court: Objection sustained. [10]
    Mr. Ernest Green: You have heard the testimony of Mr. Zelley, and you have heard his description of the condition of the premises at the time Mr. Sharpless completed what repairs he made. I ask you whether or not in your opinion such a plant as he described would be a plant satisfactory to a reasonable man?
    Mr. Taylor: I object to the question.
    Objection sustained. [11]
    Mr. Ernest Green: I ask you whether or not such a plant as you have heard Mr. Zelley describe could be successfully operated by a reasonable man?
    Mr. Taylor: I object.
    Objection sustained. [12]
    George Oehlschlager was asked this question:
    “Q. How much money altogether did Mr. Sharpless pay you?”
    Mr. Ernest Green: I object to that as not relevant.
    The Court: Yes, it does have some bearing upon the extent of the repairs, I suppose. Not very much, but still it may be relevant. Exception. [13]
    The court charged in part as follows:
    [So that it is quite apparent that when July 1st came both parties understood that this contract had not been carried out to put this plant in operation by July 1st. The defendant went into possession and has been in possession since. What does he owe this plaintiff? He owes the plaintiff just the difference between what it cost him to operate the machine as it has been and what it would have cost him if the plaintiff had put it in the repair that his lease provided for.] [14]
    [Now, it will be for you to say whether or not the plaintiff did put that belt with the cups carrying the sand in such repair as the defendant under this contract could reasonably be called upon to accept. If he did — if the failure of the belt to do its work arose out of his lack of care or diligence, or his refusal or inability to exercise the skill he possessed, if it was his fault, then you will allow nothing for that, but if the master or the landlord did not comply with his covenant, and place it in the condition that this contract required, then he will be entitled to have deducted whatever the difference between what it cost to operate it in that way and to operate it the way that he did in the carrying on of his business would be.] [15]
    [Now, you will say from the evidence, and all this evidence is for you entirely — you will say from the evidence whether or not this landlord did put that conveyer or elevator, whichever they call it, because it elevated the sand up, if I understand, in proper condition, and the failure for it to operate arose out of the lack of care or judgment or energy of the defendant. It if did, he cannot recover anything for that, but if it was not placed in such repair as this contract agreed that it should be, then he is entitled to have deducted from this rent the difference between what it would have cost him if the machine had been as he says the landlord contracted it should be, and what it was.] [16]
    [Now, you see these are all questions of fact. Did this landlord, this plaintiff, do all that was required to be done under the arrangement as the defendant said he understood it, and in which the plaintiff very largely acquiesces in the understanding, because it is admitted all around that when July 1st came this machine was not in order. Nobody denies that. And then they started out to make it useful not only to the defendant, but to the landlord. Now, he must pay this rent, $325, if the landlord has complied with his part of the bargain — placed this machine — repaired it according to the terms of this contract. If the landlord has not he will be entitled to have deducted from the rent just what you shall find is the difference — the difference it would cost him to operate it as it was, because he was entitled to have it according to the contract. Whatever that difference is you will deduct from $325, and the interest on $325, from January 1st.] [17]
    Verdict and judgment for plaintiffs for $275. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant;- (2) in overruling defendant's motion for judgment non obstante veredicto; (3) in entering judgment on the verdict; (4, 6-13) rulings on evidence, quoting the bill of exceptions; (5) portion of opinion, quoted in the opinion of the Superior Court, and (14-17) above instructions, quoting them.

      Horace P. Green and Ernest Leroy Green, for appellant.—
    The covenant to repair is construed most strongly against the party imposing such covenant on himself, and most favorably to him in whose favor the covenant is made: Miller v. McCardell, 19 R. I. 304; 33 Atl. Repr. 445.
    It is respectfully submitted that evidence of the amount of money expended upon the plant does not in the slightest degree render probable or improbable the making of repairs satisfactory to the lessee, so that the plant could be successfully operated by him.
    It was error for the court to charge the jury that the question was whether the plaintiff put the machine “in such repair as the defendant under his contract could reasonably be called upon to accept: Seeley v. Welles, 120 Pa. 69; Delahunty Dyeing Machine Co. v. Penna. Knitting Mills, 19 Pa. Superior Ct. 501.
    The proper measure of damages to a tenant for failure of a landlord to comply with his covenant to repair is “the difference between the rental value of the premises in the condition in which they remained and that which they would have been in had the landlord’s covenant been performed:” Gorman v. Miller, 27 Pa. Superior Ct. 62.

      William Taylor and W. Roger Fronefield, for appellees.—
    . Even though the contention of the appellant, in the interpretation of the lease, is right, that even though he went into possession, he was not obliged to pay any rent until the repairs were made, still, the repairs were completed, though not until about ten days late.
    Even though the repairs were not fully made, the tenant cannot escape paying the rent for the premises, after deducting the amount of damages he suffered, because they were out of repair: Gorman v. Miller, 27 Pa. Superior Ct. 62; Obermyer v. Nichols, 6 Binney, 159; Bradley v. Trust Co., 7 Pa. Superior Ct. 419; Prescott v. Otterstatter, 85 Pa. 534; Miller v. Phillips, 31 Pa. 218; Grunwald v. Hahn, 176 Pa. 37; White v. Braddock Borough School District, 159 Pa. 201.
    The statement of the measure of damages was more favorable to the defendant than the difference in rental values because the evidence, of the extra cost of operation, given by defendant, was as much as the whole rent. The plaintiff had cause for complaint: Wayne v. Lapp, 180 Pa. 278.
    July 15, 1908:
   Opinion by

Porter, J.,

The plaintiffs leased to the defendant a mortar mixing plant, in the borough of Darby, for a term of three years from July 1, 1905, at the rent of $2,250 for the term, $100 to be paid on the execution and delivery of the agreement and $325 on January 1,' 1906, etc.' The defendant paid the $100 required upon the execution and delivery of the lease, but did not pay the $325 called for by the lease on January 1, 1906, and the plaintiffs brought this action of assumpsit to recover that installment. The lease contained this covenant: “The lessor herein named hereby covenants and agrees to make repairs to the said mortar plant upon the said demised premises satisfactory to the lessee herein named, so that the same may be successfully operated by the said lessee; said repairs to be fully made and completed by the 1st day of July, a. d. 1905, and no liability for rent shall be incurred by the said lessee under this lease until such repairs have been made.” The defendant asserts that the plaintiffs failed to make the repairs called for by this covenant uf the léase and that because of such failure he is by said covenant relieved from liability to pay this installment of rent.

There was a conflict of evidence as to whether the plaintiffs had made the repairs required, and the defendant had accepted the work as done as a performance of the covenant of the lease. The defendant testified at the trial that the repairs were not satisfactory to him, but whether his objection to the manner in which the repairs were executed was made in good faith or was merely capricious was still a question for the jury: Singerly v. Thayer, 108 Pa. 291; Meacham v. Gardner, 27 Pa. Superior Ct. 296. The evidence did not entitle the defendant to binding instructions and it would have been error in the court below to have entered judgment in his favor notwithstanding the verdict. The first, second and third specifications of error are overruled. The plaintiff had made out a prima facie case when she proved the execution of the lease and that the defendant went into possession under it, and the fourth specification of error is without merit.

The fifth and fourteenth specifications of error may be considered together. The fifth specification is based upon the following paragraph from the charge: “Because he (the defendant) occupying the premises .... he could have rescinded and walked away, but having taken possession he must pay what it was worth under this contract.” The fourteenth specification refers to the following paragraph of the charge:-“So that it is quite apparent that when July 1st came both parties understood that this contract had not been carried out to put this plant in operation by July 1st. The defendant went into possession and has been in possession since. What does he owe the plaintiff? He owes the plaintiff just the difference between what it would cost him to operate the machine as it has been and what it would have cost him if the plaintiff had put it in the repair that his lease provided for.” In view of the covenants of the lease and the testimony produced at the trial, we are of opinion that these instructions were erroneous. The covenant of the lease hereinbefore quoted required the plaintiff to make repairs to the said mortar plant “satisfactory to the lessee,” and expressly stipulated that no liability for rent should be incurred by the lessee until such repairs had been made. The intention of the parties to the lease manifestly was that the mortar plant should be fully repaired and ready for successful operation by July 1, 1905, but the covenant in question clearly indicates that they recognized that there was a possibility that the repairs could not be completed prior to that date, and to meet that contingency they expressly covenanted that the accruing of rent should be suspended until the repairs were completed. It was a fact admitted by both sides at the trial that the repairs were not completed and no part of the plant was ready to be put in operation until a considerable period after July 1. The defendant, under an arrangement between the parties, did personally commence, during the latter part of June, going to the premises and assisting the plaintiff in making the repairs, the purpose of the parties being to get the plant in condition to start as soon as possible. The various parts of the machinery were started and tested during the progress of the repairs, but the plaintiff actually continued in the prosecution of the work of repairing the machinery until the last of September. So long as the plaintiff was actually engaged in the work of repair it could not reasonably be said that the repairs had been completed. The fact that a part of the plant had been put in operation did not change the contract of the parties. They had covenanted that the rent should not begin to run until the repairs were completed. The defendant was present upon the premises while the repairs were going on, but the plaintiff was in concurrent possession, under the covenants of the lease, for the purpose of making the repairs. The parties had in their contract left nothing to inference, they had incorporated a covenant which saved the defendant from all liability for rent prior to the time of the completion of the repairs. Under the undisputed evidence in the case and the covenants of the lease the defendant was not liable for rent of the premises for that part of the term prior to the last of September, 1905. The fifth and fourteenth specifications of error are sustained.

When, about October 1, 1905, the defendant had notice that the plaintiff considered the repairs completed and was about to withdraw from the concurrent possession which had existed during the progress of the repairs, he had not yet entered upon the term or become liable for rent. He was then called upon to act. If he in good faith believed that the plant had not been satisfactorily repaired, so that it could be successfully operated, he was not bound to accept it. He could have surrendered the possession, or offered to surrender it, and relieved himself from the payment of rent and become entitled to recover what he had paid, or he could have entered into the exclusive possession and made the repairs, in accordance with the terms of the agreement, and defalked the cost of making them from the rent, or he could have retained the exclusive possession and deducted from the rent the difference between the rental value of the mortar mixing plant as it then was and its rental value as it would have been had the covenant of the plaintiff been performed: Warner v. Caulk, 3 Wharton, 193; Gorman v. Miller, 27 Pa. Superior Ct. 62. The lease covenanted that, until the repairs were made, no liability for rent should be incurred “by the said lessee under this lease,” but it did not covenant that the lessee should have exclusive possession of the property, for the period of three years, without making compensation. A covenant in a lease which provides that the landlord shall make repairs before the term begins and that until such repairs are made the covenantee shall not become bound by the terms of the lease gives to the lessee an election, upon failure of the landlord to make the repairs, to decline to enter under the lease and rescind the contract or to take possession and defalk the damages suffered, according to the measure above stated, but it does not, in the absence of an express covenant to that effect, give him the additional right to take possession and refuse to pay any rent whatever. The learned, judge of the court below, while recognizing the right of the defendant to defalk the damages arising from the failure of the plaintiff to perform the covenant to repair, charged the jury that the measure of damages was the difference in the cost of operating the plant. While the difference in the cost of operation might affect the rental value of the property, it is not the only element to be considered. The productiveness of the plant might be directly affected or the condition might be such as to impair the quality of the product. The fifteenth, sixteenth and seventeenth specifications of error are sustained.

The offer of testimony, the rejection of which is the foundation of the sixth specification of error, was properly excluded. The covenant of the lease only required the plaintiff to repair the then existing mortar plant, it did not require her to install a more powerful engine or new and improved devices. The plaintiff was bound to repair, to the satisfaction of the lessee, all the machinery which then comprised the plant; it was not for her to say that there were more mortar machines or lime slaking machines than the defendant would find necessary in his business, she was bound to put all the existing machinery in good repair, but she was not required to furnish additional machinery. The question asked of the witness Phillips involved the general character of the plant and was not confined to the condition of repair in which he found the machinery which composed the plant. The sixth specification is overruled. The offer of testimony, the rejection of which is the subject of the seventh specification of error, seems to have been proper. The sand conveyer was one of the machines used in connection with this plant, and the undisputed testimony indicates that it is an important labor-saving device. Much testimony had been offered as to the condition of repair in which the plaintiff left this sand conveyer. The witness, Phillips, had been shown to be a man of large experience in this business and the defendant ought to have been permitted to show by him the necessity for having the sand conveyor in good condition in order to have a satisfactory operation of the plant. The seventh specification is sustained. The eighth and tenth specifications of error are founded on the sustaining of objections to questions which assumed that the plaintiff had covenanted that the pumps would convey enough water to operate the plant. The plaintiff had covenanted to repair the pumps, in connection with the other machinery, but she had not covenanted that the water supply was sufficient nor that the pumps were large enough to properly supply the plant. These specifications of error are dismissed. The offer to show the general condition of the plant after the defendant had been operating it a year was properly rejected, and the ninth specification is dismissed. The condition of the machinery of the plant at the time the plaintiff completed the repairs and permitted the defendant to take possession was material to the determination of the rights of the parties. The defendant had offered testimony as to the character of the defects in the appliances and it was proper for him to show, as affecting the rental value, whether the machinery in such condition could be successfully operated. We are of opinion that the testimony, the rejection of which is the subject of the eleventh and twelfth specifications of error, ought to have been admitted, and those specifications of error are sustained. Evidence as to the work which the plaintiff had caused to be done in making the repairs of the plant was material, but the amount of money which she had paid out for that work was not so; for this reason the thirteenth specification of error is sustained, although we would not reverse the judgment upon that ground alone, as the evidence certainly could do the defendant’s cause no harm.

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


author: Head, J.,

text:
    Bower, Appellant, v. United Gas Improvement Company.

      Corporations — Gas companies — Regulations—Stoppage of gas — Penalty —Municipalities.

    A gas company which has leased public gas works from a city, may in the absence of any prohibition in the lease require citizens desiring to become consumers of the gas to sign a contract agreeing to submit to a regulation that if the bill for gas is not paid within ten days, the flow of gas may be stopped, and that a penalty of three per cent may be added on the bill if it is not" paid within five days after presentation.
    A citizen who has signed such a contract has no standing to maintain a bill for an injunction to restrain a threatened shutting off of gas or an imposition of the three per cent penalty.
    Argued Oct. 17, 1907.
    Appeal, No. 77, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 2, Phila. Co., Jan. T., 1906, No„ 4,200, dismissing bill in equity in case of Maurice L. Bower et al. v. The United Gas Improvement Company.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Wiltbank, J., filed the following opinion1.
    FINDINGS OF FACT.
    1. The plaintiffs are residents of Philadelphia and occupy premises supplied with gas from the mains of The United Gas Improvement Company.
    2. The United Gas Improvement Company is a corporation duly organized under the laws of the commonwealth of Pennsylvania, engaged in the manufacture of illuminating gas for sale to the plaintiffs and other residents of Philadelphia.
    3. The United 'Gas Improvement Company, under the terms of a lease between it and the city of Philadelphia, which lease is contained in an ordinance of councils passed November 12, 1897 (ordinances of councils, 1897, page 227), claims the right to levy a penalty of three per cent on all bills for gas consumed which are not paid within five days of the presentation thereof.
    4. Sec. 11 of said ordinance provides as follows:
    'The said United Gas Improvement Company, its successors and assigns, shall be entitled to enforce the same penalties for nonpayment of bills at the office of the Company within five (5) days after presentation as are now in force in the City of Philadelphia, and to the same remedies against consumers for breaches of their contracts for the supply of gas.”
    5. The Philadelphia Gas Works were originally constructed under the authority of an ordinance of councils, of March 21, 1835, whereby the powers necessary for the construction and operation thereof were vested in twelve trustees elected by councils. By sec. 5 of said ordinances it was provided, inter alia, as follows:
    ''The said trustees shall from time to time prepare and submit to Councils, for their approbation, rules and regulations under which the gas may be furnished to private consumers and to the public lamps.”
    6. By an ordinance of councils of February 8, 1838, it was provided in sec. 4 as follows:

      “ It shall be lawful for the said trustees to provide, from time to time, such further and other rules and regulations under which the gas may be furnished to private customers, as' experience may suggest, and as the said trustees may deem necessary or convenient in the use or consumption of gas.”
    7. Pursuant to said ordinance of 1838, the trustees of the gas works, on July 12, 1839, adopted the following rules and regulations:
    “Sec. 13. In default of payment for gas consumed, within ten days' after a bill is rendered, or in case of a leak or injury done to the meter or pipes within the premises of any consumer, the flow of gas may be stopped until the bill is paid, or the necessary repairs are made.
    “Sec. 14. The price of gas will be fixed from time to time by the trustees; and a penalty of three per cent will be added on all bills for gas not paid at their office within five days after presentation.”
    8. By an ordinance of councils of March 20, 1855, the said trustees were authorized and empowered to take charge of and exercise exclusive control over, and have the management of, the several gas works and all the property appertaining thereto “now in possession of the Corporation of the City of Philadelphia, or that may hereafter be in its possession.’” Said ordinance further provided:
    “And the said Trustees shall have the same power to make contracts or materials, labor and superintendence, to be used and employed in said works and to collect all debts now due or hereafter to become due to the same, as they now have under the ordinances of the Mayor, Alderman and Citizens of Philadelphia, relating to the gas works built under their authority, and to enforce the same rules and regulations for the introduction and consumption of gas, as are now or may be hereafter authorized by the said ordinance or any other ordinances duly enacted.”
    9. By ordinance of December 30, 1886, sec. 23, the trustees of the Philadelphia Gas Works were abolished, and by virtue of sec. 28 of said ordinance, and of the Act of June 1, 1885, P. L. 37, art. IV, sec. 1, all the powers, duties, incidents and functions of said trustees were vested in the department of public works, bureau of gas, said bureau of gas being created by ordinance of April 4,1887.
    10. By agreement made November 12, 1897, in pursuance of an ordinance of councils approved on the same date, the city of Philadelphia leased to The United Gas Improvement Company, for the term beginning November 12, 1897, and ending December 31, 1927, all the property, real and personal, collectively known as the Philadelphia Gas Works, with the appurtenances, comprising generally the land, buildings, tenements, machinery, apparatus, tools, mains, pipes, surfaces, meters, and other appurtenances possessed or used by or for the city of Philadelphia in the manufacture, storage, sale, distribution and supply of gas, with authority and power during the term oí said lease, to maintain, and to operate said •gas works and appurtenances.
    11. Said lease provides as follows:
    “Clause 11. The price which shall be-charged to all consumers, other than the city of Philadelphia, by the said The United Gas Improvement Company, its successors and assigns, shall, until otherwise provided by ordinances of Councils, be one (1) dollar per thousand cubic feet. It shall be competent' for Councils to reduce these charges from time to time by ordinances; but said ordinances shall not at any time reduce the price below the following:
    “Until and including the thirty-first day of December, 1907, ninety (90) cents per thousand cubic feet.
    “From January 1st, 1908, until and including December 31st, 1912, eighty-five (85) cents per thousand cubic feet.
    “From January 1st, 1913; until and including Decembér 31st, 1917, eighty (80) cents per thousand cubic feet. '
    “From January 1st, 1918, until and including December 31st, 1927, seventy-five (75) cents per thousand cubic feet.
    “The said The United Gas Improvement Company, .its successors and assigns, shall be entitled to enforce the same penalties for nonpayment of bills at the offices of the Company within five (5) days after presentation as are now in force in the city of Philadelphia, and to the same remedies against consumers for breaches of their • contracts for the supply of gas.'
    “But it is distinctly understood and agreed that nothing herein contained shall give' to said The United Gas Improvement Company, its successors or assigns, any lien or claim upon a property' for a tenant’s or occupant’s gas bills, or give the right to said The United Gas Improvement Company to refuse to furnish gas to any subsequent tenant or occupant of said property by reason of prior tenant or occupant having failed to pay the bill: Provided, however, That said The United Gas Improvement Company, its successors or assigns, shall not be required to furnish gas to any person, firm or body corporate indebted for arrearages due for gas theretofore supplied to them. ■
    “Bills shall not be rendered more frequently than are now rendered to various classes of consumers.”
    12. Said lease further provides:
    “Clause 12. The United Gas Improvement Company, its successors or assigns, shall pay to the city of Philadelphia, in each year during the continuance of this agreement, as follows, viz.:
    “Upon all gas sold prior to January 1st, 1908, all sums received by them in excess of ninety (90) cents per thousand cubic feet.
    “Upon all gas sold after December 31st, 1907, and prior to January 1st, 1913, all sums so received in excess of eighty-five (85) cents per thousand cubic feet. •
    “Upon all gas sold after December 31st, 1912, and prior to January 1st, 1918, all sums so received in excess of eighty (80) cents per thousand cubic feet.
    “Upon all gas sold after December 31st, 1917, and prior to January 1st, 1928, all sums so received in excess of eighty (80) cents per thousand cubic feet.
    “Statements shall be rendered and payments made under this clause by the lessee to the city as follows: Within twenty-five (25) days after the expiration of each quarter of each year for which any payment is to be made, beginning with the quarter preceding the first day of January, 1898, said The United Gas Improvement Company shall file with the Controller of the City of Philadelphia a statement sworn to by its President or Vice-President or by its Secretary or Treasurer, which shall state the quantity of gas measured in cubic feet sold hereunder within the quarter ending with the last day of the preceding month, the amount of money collected for such sales, or for sales in any previous quarter, and the amount of money due and payable to the City of Philadelphia under the provisions of this clause out of such receipts; and shall make payment to the City Treasurer of such amount so ascertained to be due to the City of Philadelphia hereunder within five (5) days after the expiration of said period of twenty-five (25) days. The City of Philadelphia shall have the right at all reasonable hours during the continuance of this contract, by its proper officers, to examine those books of the lessee which show the amount of gas so sold and paid for, so as to verify the correctness of said statements.”
    13. In accordance with clauses 11 and 12 of said lease the defendant has paid to the city of Philadelphia sums of money aggregating $3,608,159.94 in quarterly payments from January 1,1898, to July 1,1905.
    The aforesaid penalty for nonpayment of bills was continuously enforced by the trustees of the Philadelphia Gas Works and by the bureau of gas, successively, from 1839 until 1898.
    14. The defendant has not compelled the payment of the aforesaid penalty of three per cent by the plaintiffs or other consumers of gas, by threatening to cut off and by cutting off the supply of gas of consumers who, having incurred the said penalty; refused to pay the same within ten days after the date of presentation of bills. The defendant has exercised its right, under sec. 13 of the rules and regulations above set forth, in the event of default in payment for gas consumed within ten days after a bill was rendered, to stop the flow of gas until the bill was paid; but this defendant has never stopped the flow of gas for nonpayment of a penalty, as averred in paragraph 4 of the bill.
    15. On or about September 25, 1901, the plaintiff, Maurice L. Bower, applied for gas to be supplied under the company’s rules and regulations to premises No. 426 North Eighth street, and signed an application, a copy of which, marked exhibit “A,” is annexed to the answer, whereby he agreed to pay 'for the same promptly at the regular price and according to the rules of the company. On or about March 8, 1904, the defendant collected from Maurice L. Bower two cents as a penalty for nonpayment within five days of a bill presented on or about March 1, 1904, for gas consumed on said premises.
    16. On or about March 18, 1902, the plaintiff, Charles S. Aitken, applied for gas to be supplied under the company’s rules and regulations to premises No. 440 Salford street, and signed an application, a copy of which, marked exhibit “B,” is annexed to the answer, whereby he agreed to pay for the same promptly at the regular price and according to the rules of the company. On or about September 18, 1903, the defendant collected from Charles S. Aitken the sum of sixteen cents as a penalty for the nonpayment within five days of a bill presented on or about September 1, 1903, for gas consumed on said premises.
    17. On or about May 8, 1896, the plaintiff, James J. Doran, applied in writing to the city of Philadelphia for gas to be supplied “under the terms and conditions hereinbefore stipulated ” to premises 2212 Dickinson (now Firth) street. Subsequent to the aforesaid lease between the city of Philadelphia and the defendant, the defendant continued to supply gas to the said premises, and on or about February 20,1903, collected from James J. Doran, forty-nine cents as a penalty for the nonpayment within five days of a bill presented on or about February 10, 1903, for gas consumed on said premises,
    18. On or about June 28, 1904, the plaintiff, John Allsback, Jr., applied for gas to be supplied under the company’s rules and regulations to premises No. 60 South Second street, and signed an application a copy of which, marked exhibit “C,” is annexed to the answer, whereby he agreed to pay for the same promptly at the regular price and according to the rules of the company, On or about September 17,1904, the defendant collected from John Allsback, Jr., twenty-nine cents as a penalty for the nonpayment within five days of a bill presented on or about September 7,1904, for gas consumed on said premises.
    19. A copy of the rules and regulations referred to in said applications, marked respectively exhibits “A,” “B,” and “C,” is annexed to the answer marked exhibit “D.” A copy of said. rules and regulations were also printed upon the back of every bill rendered by the defendant to consumers of gas. All gas consumed by the plaintiffs, Maurice L. Bower, Charles S. Aitken, James J. Doran and John Allsback, Jr., was furnished by the defendant in accordance with their respective written applications, as above set forth and in each instance the penalty of three per cent was collected by the defendant, in accordance with said rules and regulations, and in accordance with their respective contracts. A great majority of the consumers of gas in the city of Philadelphia have signed applications in the forms herein set forth, and have expressly agreed to be bound by the rules and regulations aforesaid.
    20. The defendant has collected, in penalties from the consumers of gas in the city of Philadelphia, many thousands of dollars.
    21. Defendant is by law obliged to furnish gas to all persons residing in the city of Philadelphia occupying premises' therein who apply therefor and comply with the defendant’s rules and regulations, and furnishes gas on credit to large numbers of persons of small means, against whom it is impossible to collect the amounts due by process of law.
    22. Defendant renders bills quarterly except in cases where a consumer requests a monthly bill. Where a bill is rendered quarterly, defendant’s inspector reads the meter, on an average, two weeks before the bill is rendered, and at the time of reading the meter the inspector leaves wjth the consumer or with one of his family a written statement of the quantity of gas indicated by the meter to have been consumed, from which, by comparison with the last previous reading, the consumer may readily calculate the amount of the bill about to be rendered. Where a bill is rendered monthly the inspector reads the meter, on an average, one week before the bill is rendered, and at the same time leaves with the consumer a written statement of the quantity of gas consumed.
    OPINION.
    The United Gas Improvement • Company possesses franchises duly conferred by its charter, and as a business agency it has the power to transact business as an individual might, save as restricted by its articles of incorporation. It may, therefore, in operating its plant and furnishing citizens with illuminating gas, prescribe rules, regulations and conditions, not only for the manufacture of its product, but also for the sale of it to the public at large. In taking the leasehold of the property from the city, it stipulated not to prescribe certain rules. With respect to these, therefore, as well as to rules exceeding its charter limitations, it must be held incapable of enforcing them. The rule or regulation complained of by the plaintiffs, if not of this prohibited character and if such as an ordinary trading concern might adopt, must be respected unless it is against public policy.
    The plaintiffs contend that the regulation for the demand of three per cent on arrears remaining due beyond a certain time, is not a proper regulation of trade. If we are to regard it as prescribing a penalty for nonpayment of moneys due, it is against the law, because it is not warranted by any effective statutory provision, but depends only upon municipal ordinance: Emery v. Boyle, 200 Pa. 249; whilst if we are to regard it as a provision for liquidated damages, it can secure to the defendant company nothing more than actual compensation for the loss incident to the plaintiffs’ deferred payments. As we have understood the argument made in behalf of the plaintiffs, it is to be considered, further, that the regulation named, even if not open to the two objections just stated, cannot be countenanced by a court of equity, inasmuch as it is against public policy.
    The regulation or stipulation to the effect that a failure to pay for the consumption of gas, at a time named and after notice provided for, must result in one of two consequences, either in the shutting off of the supply from the premises of the debtor, or in his payment of three per cent as compensation for his delinquency, is one that, as a trading concern, the defendant might insist upon, independently of any terms of the grant by the city to it. Whether or not it is regarded as derived from the municipal authority, it is valid and effective by the light of the decisions of the Supreme Court upon the judicial investigation by that court of the powers of the city in supplying gas to its inhabitants, from the year 1838 to the time of the creation of the trustees of the City Gas Works and thence to the time of the contract of the city with the defendant company.
    In view of the authorities, to which we shall later briefly refer, the question of public policy suggests the broader ground for the plaintiffs’ contention. It may be urged that the rule for what is called the penalty operates to place a delinquent consumer under pressure or duress, inasmuch as when behindhand in his indebtedness he finds himself confronted with the alternative of paying what he may regard as neither lawful interest nor a lawful penalty, or of being deprived of the essential comfort of artificial light. He is forced to this position although ready to pay the manufacturer the arrears due by him, plus the legal rate of interest for his delay, and must elect to submit to a charge which is not prescribed by statute, or to lose the material convenience of a supply of light, unattainable elsewhere as conveniently, and which is undoubtedly more advantageous to him in respect of stability and cheapness than illumination from other sources, as, for instance, from applied electricity, or the burning of oil. And yet these considerations are not weighty. They originate, it must be remembered, in the failure of one the parties to a contract to duly perform his part, and his complaint is not free from the criticism that it disregards certain circumstances which make against him, and for some of which he is exclusively responsible.
    By nonpayment at the maturity of his account, each of the plaintiffs became one of a class who had knowingly exposed themselves to a consequence with which they were familiar and which they had deliberately invoked by the terms procuring the gas for them. No discrimination was made against him as an individual, nor did any action of the defendant procure a discrimination against him as one of this class. By his failure to pay at the date he had stipulated for, and by permitting the lapse of the interval of grace allowed him, he ranged himself in the company of delinquents. No one placed him there but himself. And he had agreed to stand there in the contingency which he later created.
    The defendant, it is true, has substantially the monopoly of the supply to the city, and as it derives its right from the municipality it must be required to afford a supply to the masses upon reasonable terms and without more than a reasonable compensation. Equity would take hold of and check any course of action indicating that unfair exercise of power which has always made a monopoly odious. But unless we find that a citizen proposing to use gas and constrained to purchase it' from one company because he can get it from no other source as satisfactory, in signing an agreement that he will pay at a certain rate for use and at an additional rate upon his neglect to comply with his contract, is under such duress as to require a chancellor to direct a modification of the terms so that the consumer obtains all that he bargained for and the provider must take less, we cannot conclude that relief is of right.
    This brings us to the true bearing of the question of public policy. The prompt collection of its returns is necessary to the defendant’s economical and efficient working of its plant and to a copious and steady supply to its customers according to its obligations. It is necessary, also, to the payment of its rentals to the city. The permitted increase of arrears on the part of all who failed to pay what they owed would seriously impair the power of the defendant to give good service generally. It might also lessen the revenue of the lessor. The laxity would become general and uncertainty ensue. The delinquents might have to face evils wider than that of which they complained, as, for instance, a higher rate and a poorer quality; and these considerations make it clear that the regulation for the so-called penalty operates beneficially if we have in mind the welfare of all consumers alike. In a large business combination for securing one of the necessities of life, essential in every hour of every day, and reaching to great manufacturing plants as well-as to domestic privacy, where darkness might involve extensive loss and even calamity, al| parts of the system should work harmoniously; and when consumers have agreed to a scheme that is practical, broad and efficacious, there is no merit in the contention of a few individuals of one of the classes that they, perhaps themselves an inconsiderable minority of that very class, must be allowed exceptional consideration. Even of this class a majority might prefer that the regulation should prevail. The interests of a few must; in equity, give way to the general interests of the public, and these last, it is obvious, are sub-served by the regulation for the penalty.
    There is also a circumstance established by the plaintiffs which must weaken the argument that they are aggrieved to a peculiar degree by the demand for the three per cent on their accounts in arrear. It was admitted for them at bar that upon nonpayment within the stipulated time the defendant might of right cut off the supply from their premises. If such was the case, and the point appears indisputable, Miller v. Wilkes-Barre Gas Co., 206 Pa. 254; Com. v. Phila., 132 Pa. 288, their decision that the payment of the penalty was preferable to this loss must be regarded as an acceptance by them of a consequence less serious than one which they had incurred, which was legal, and which they had no right to avert, and did not ask to avert, in this proceeding. They in fact compromised for an admitted lapse from their agreement.
    We therefore conclude that the plaintiffs have not shown a case in equity which entitles them to relief on the broad ground we have considered.
    We turn to the commercial aspect of the inquiry.
    It has been held that the city of Philadelphia when it undertakes the manufacture and sale of gas acts as a private corporation, and has the same powers with respect to the conduct of its business as are possessed by such a body. This was adjudged in the Western Saving Fund Society v. Phila., 31 Pa. 175-185; Wheeler v. Phila., 77 Pa. 338.
    The contracts which a municipal corporation may make for the purpose of supplying the .inhabitants with gas-light in their streets and houses, relate to the “things of commerce,” as distinguished in the civil law from the “things public,” which are regulated by the sovereign. Such contracts are not made by the municipal corporation, by virtue of its powers of local sovereignty, but in its capacity of a private corporation. The supply of gas-light is no more a duty of sovereignty than the supply of water: Lewis, C. J., speaking for the court in Western Saving Fund Society v. Phila.; 31 Pa. 175.
    In the Western Saving Fund Society v. Phila., a later adjudication, 31 Pa. 185, it was said for the court by Mr. Justice Strong : “ As a local sovereign it had no authority to enter into the business of manufacturing and selling gas, for its sovereignty did not extend to such subjects any more than it did to almost any other manufacture. . . . When such a corporation engages in things not public in their nature it acts as a private individual; no longer legislates, but contracts, and is as much bound by its engagements as is a natural person. The distinction between public duties and: private business is wide and obvious.”
    In the Girard Life Insurance Co. v. Philadelphia, 88 Pa. 393, this doctrine was restated and affirmed. See also Brumm’s Appeal, 22 W. N. C. 137; Bailey v. Phila., 184 Pa. 594.
    In Miller v. Wilkes-Barre Gas Co., 206 Pa. 254, Mr. Justice Dean said: “That a municipality or corporation furnishing water or gas may by ordinance or by-laws make’ reasonable rules and regulations to insure the payment of bills, among others that of stopping the supply unless all arrearages are paid, whether owing by the tenant in possession or his predecessor, has been settled.”
    The provision complained of at bar has been effective in Philadelphia for about thirty-six years; and a like provision with respect to water rents has been enforced for about fifty years. In Girard Life Ins. Co. v. Phila., 88 Pa. 393, a bill was filed to restrain the city from cutting off the supply of water to premises purchased at sheriff’s sale. The water department had claimed the right to shut off the supply unless payment was made of arrears for three years, together with a penalty of fifteen per cent. It was admitted that the city had the right to collect one year’s arrears as a condition of supplying water, but it was contended that the ordinance of councils did not authorize the water department to demand more than one year’s rent. That ordinance was sustained as a reasonable provision for enforcing payment.
    We find authorities in the books which are applicable by analogy to the case before us and sustain the contention of the defendant as to the validity of the provision for the payment of three per cent upon default: Phila. v. Cooke, 30 Pa. 56; Commonwealth v. Wagner, 24 W. N. C. 171; Bray v. Phila., 11 W. N. C. 202; Altoona v. Shellenberger, 6 Pa. Dist. Rep. 544; Smith v. Scranton Gas & Water Co., 5 Lack. Leg. N. 235; Appeal of City of Harrisburg, 107 Pa. 102; Foster v. Trustees of Gas Works, etc., 12 Phila. 511; Trimmer v. Water Co., 4 Kulp, 293.
    All these cases support in one form or another regulations for the coercion of payment of arrears due for the supply of great necessities like gas and water. Taxes demanded upon proper assessment from citizens for the privileges of residence may in some respects be regarded as analogous to payments made for participation in the general use of artificial light supplied by municipal arrangement with the manufacturer. The legislature has sanctioned the enforcement of prompt payment of taxes by a penalty: Vide Act of April 17, 1861, P. L. 354; Act of June 30, 1885, P. L. 193.
    The cases quoted in the earlier part of this discussion are directly to the point, and therefore we need not seek the aid of other decisions, however applicable they may be, by way of stating the principles of law which must guide us herein.
    The bill should be dismissed. Let due notice be given and a form of decree be presented.

      Error assigned was decree of the court dismissing the bill.

      Walter Biddle Saul, with him Daniel R. Rothermel, for appellants.
    Equity will regard a penalty as intended to secure the fulfillment of a contract and limit a recovery to the loss actually sustained, notwithstanding the stipulation of the parties on the principle that one party should not be allowed to profit by the default of another; Louden v. Taxing Dist. of Shelby County, 104 U. S. 771; Cotheal v. Talmage, 9 N. Y. 551; Streeper v. Williams, 48 Pa. 450; Manhattan Life Ins. Co. v. Wright, 126 Fed. Repr. 82.
    There is not a single decision that can be found upholding the right of a private corporation to lew a penalty bv cnntract without express statutory authority, nor is there a single case where the question of a penalty is raised, where it is not held void: Richardson v. Crandall, 48 N. Y. 348; Atcheson v. Mallon, 43 N. Y. 147; Anderson v. Jett, 89 Ky. 375 (12 S. W. Repr. 670); Brown v. First Nat. Bank, 137 Indiana, 655 (37 N. E. Repr; 158); Fuller v. Dame, 35 Mass. 472.
    In every case, without exception, where equity has intervened to relieve against a penalty, it has been because the person seeking the aid of the court had, by contract, bound himself to pay a penalty.
    The councils of the city of Philadelphia cannot' by ordinance confer the right to levy a penalty such as is here involved on a private corporation: Bailey v. Philadelphia, 184 Pa. 594; Lesley v. Kite, 192 Pa. 268; Philadelphia v. Brabender, 201 Pa. 574.

      R. Stuart Smith and John G. Johnson, with them Charles E. Morgan, for appellee.
    The city of Philadelphia, in the capacity of a private corporation manufacturing and supplying gas, had power to adopt and enforce the regulation of which the plaintiffs complain: Western Saving Fund Society v. City of Philadelphia, 31 Pa. 175, 185; Wheeler v. Phila., 77 Pa. 338; Bailey v. Phila., 184 Pa. 594; Com. v. Phila., 132 Pa. 288; Brumm’s App., 22 W. N. C. 137.
    The United Gas Improvement Company has precisely the same right to adopt this regulation as the city had; the only conditions are that the regulation must not be unreasonable and that the consumer must have had notice of the regulation in order to be bound by it: Kittanning Borough v. Nat. Gas Co., 26 Pa. Superior Ct. 355; Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393; Com. v. Philadelphia, 132 Pa. 288; Phila. v. Cooke, 30 Pa. 56; Com. v. Wagner, 24 W. N. C. 171; Foster v. Trustees of Gas Works, etc., 12 Phila. 511; Trimmer v. White Haven Water Co., 4 Kulp, 293; Bray v. Phila., 11 W. N. C. 202; Brumm’s Appeal, 22 W. N. C. 137; Altoona v. Shellenberger, 6 Pa. Dist. Rep. 544; Smith v. Scranton Gas & Water Co., 5 Lack. Leg. N. 235.
    October 12, 1908:
   Opinion by

Head, J.,

The city of Philadelphia is the owner of an extensive plant constructed to enable it to manufacture and distribute to its citizens gas for light and heat. For upwards of a half century the city itself operated its plant and during that period adopted and continuously enforced certain regulations deemed necessary to secure payment from the consumers of the amounts due for gas furnished. Among these were the following, adopted in pursuance of an ordinance of city councils enacted in 1838, to wit:

“Sec. 13. In default of payment for gas consumed, within ten days after a bill is rendered .... the flow of gas may be stopped until the bill is paid, etc.
“ Sec. 14. The price of gas will be fixed from time to time by all the trustees and a penalty of three per cent will be added on bills for gas not paid at their office within five days after presentation.”

The practical necessity and reasonableness of some such provisions become apparent when we consider that the consumers supplied now number about 250,000 and that gas is furnished, as the court finds, “on credit to large numbers of persons of small means against whom it is impossible to collect the amounts due by process of law.”

During a large portion of the same period the city, by means of another plant constructed for that purpose, furnished, and still continues to furnish, to the citizens a supply of water. Regulations, similar in character with those already quoted, were duly adopted and have been steadily enforced against consumers of water who allowed themselves to become in default, the chief difference being that a percentage was added, after default, to the bill of the water consumer, much larger than was demanded from the consumer of gas.

It has been definitely settled that in thus undertaking to furnish to its citizens supplies of water and gas, the city was. not discharging any municipal obligation or exercising any power which it possessed only because it was a municipality, but was acting in the capacity and exercising the powers of a private corporation: Western Saving Fund Society v. City of Philadelphia, 31 Pa. 175; s. c., 31 Pa. 185; Wheeler v. Phila., 77 Pa. 338; Baily et al. v. Phila., 184 Pa. 594. In the case first cited Chief Justice Lewis said: “But the contracts which a municipal corporation may make for the purpose of supplying the inhabitants with gas light, in their streets and houses relate to the ‘things of commerce,’ as distinguished in the civil law from the ‘things public,’ which are regulated by the sovereign. Such contracts are not made by the municipal corporation, by virtue of its powers of local sovereignty, but in its capacity of a private corporation. The supply of gas light is no more a duty of sovereignty than the supply of water.”

Acting thus in the capacity of a private corporation what power did the city possess to adopt and enforce regulations to insure payment of gas bills and establish conditions, upon the performance of which, those who had broken their contracts by becoming in default, might condone the breach and again entitle themselves to the rights and privileges which flowed from their contracts but would cease upon their breach?

In Miller v. Wilkes-Barre Gas Co., 206 Pa. 254, the question is thus answered by Mr. Justice Dean: “That a municipality or corporation furnishing water or gas may by ordinance or by laws make reasonable rules and regulations to insure the payment of bills, among others, that of stopping the supply unless all arrearages are paid, whether owing by the tenant in possession or his predecessors, has been settled: Girard Life Ins. Co. v. Phila., 88 Pa. 393; Brumm’s Appeal, 22 W. N. C. 137.” It is clear therefore that a corporation engaged in furnishing a supply of water or gas to the public may lawfully enter into contracts with consumers in which it expressly reserves the right to stop the supply in case of a breach of the contract by the consumer’s neglect or refusal to pay the. stipulated rates at the time and place agreed on.

It is not easy then to perceive upon what ground one, who has voluntarily defaulted in the performance of a contractual obligation, could invoke the aid of a court of equity to restrain the other party from exercising a right, expressly reserved in the contract and declared by the courts to be reasonable and not an abuse of its corporate powers. If the exercise itself of the right to shut off the supply to those who become in default furnishes no ground for interference by a court of equity, it would seem to follow that a mere threat to exercise such right would create no foundation upon which a complainant could rest a bill.

In Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393, the complainant averred in its bill that it had become the purchaser, at sheriff’s sale, of certain premises in the city; that it desired to have a supply of water furnished by the city and was willing to pay for the same; that it had tendered the water rent for one year which was declined and that it had been informed by the water department, that the water rent for three years was due, together with a penalty of fifteen per cent, and that unless said arrears, with the penalty, were paid, the water supply would be stopped; the bill prayed for an injunction to restrain the defendant from cutting off the water supply. It was held that the complainant had no equity to restrain the city and that payment of all the arrearages claimed could be enforced by the city in the manner prescribed by its ordinance.

The controlling principle of this case, having been reaffirmed in a later one to which we shall presently refer, it becomes our duty to apply it to the facts now before us which may be briefly stated thus. The defendant is a private corporation, “duly organized under the laws of the commonwealth of Pennsylvania, engaged in the manufacture of illuminating gas for sale to the plaintiffs and other residents of Philadelphia.” By virtue of a lease made in 1897, the execution of which was duly authorized by councils, the defendant took over the operation of the gas plant owned by the city. As the case is presented to us we have but little concern with the terms of the lease further than to observe that it contains nothing prohibiting the lessee from exercising its corporate right to adopt and enforce the regulations to secure payment of bills which we have already quoted and which had so long been in force and they were accordingly adopted. The defendant therefore has, in this respect, precisely the same powers, which we have seen were possessed by the city itself whilst acting in the capacity of a private corporation supplying its citizens with gas. Each prospective consumer was obliged to sign an application in which he had formal notice of these regulations and agreed to be bound by them. This bill was originally filed by five residents of the city and each one of them after signing such an application, had become a consumer of gas supplied by the defendant. Later, by leave of the court, four other persons were added. It appeared in the case of M. L. Bower, one of the complainants, that during the period from September, 1901, to February, 1905, when his account was closed, he had made default twice and the extra percentage or penalty of thirty cents in one instance and fifty cents in the other was paid by him. The plaintiff Doran had defaulted sixteen times between 1898 and January, 1905, and his extra payments aggregated $2.01. None of the originally named parties were called as witnesses and the record does not disclose any objection made by them or any of them to the payments which, under their contracts, had been demanded and made. Brenzel, whose name was added as a party, testified that after a default he went to defendant’s office and presented his bill with the money called for on its face. Observing the clerk in charge “adding the penalty” he refused to pay it and the bill and his money were returned. Shortly after he received a notice that if he did not pay by such a day the gas would be shut off and he then sent a check because “ the better way for me to do was to go pay it rather than have the gas shut off.” The bill prayed, inter alia, for an injunction restraining the defendant from adding the three per cent or any other penalty to bills not paid at the contract time, from shutting off the gas in case of a refusal to pay such additional sums and for a return of those previously collected.

Have the complainants, by this showing, presented a case that ought to impel a court of equity to strike down a regulation which has existed for upwards of half a century, of which the complainants had ample notice before entering into any relation with the defendant and by which each one of them expressly agreed to be bound when he signed the application which entitled him to receive a supply of gas? The regulation is not attacked on the ground that it is unreasonable, arbitrary or unconscionable. The argument is that a consumer of gas who neglects or refuses to pay his bill at the stipulated time simply becomes the debtor of the company to that extent as he would to the merchant who sold him goods on credit. That the law has declared legal interest to be the only compensation that can be rightfully demanded or recovered for such default and therefore the defendant ought to be restrained from adding three per cent to the bills of those in default and content itself with the addition of legal interest.

The argument seems to us to be more plausible than sound. The city or the present defendant, its lessee, engaging in the business of supplying water or gas to the public, is not in the position of a merchant who may pick and choose his customers, extending credit to those he may consider financially responsible and refusing it to all others. But the defendant is, as the court below finds, by law obliged to furnish gas to all persons residing in the city of Philadelphia occupying premises therein who apply therefor and comply with the defendant’s rules and regulations.” No exception is taken to this conclusion. The contract made by each consumer is to continue indefinitely so far as the defendant is concerned, that is to say during the pleasure of the consumer. He may end it at any time, the defendant cannot, unless there has been a breach. When the consumer has voluntarily ceased to perform the conditions upon which the obligation of the defendant rests, it would be anomalous to say that the latter could not in turn determine its obligation. But it seems to us the complainants ask us to say not only that the consumer may end his contract when he chooses, — for this would be conceded — but that he may break it at pleasure and then resume it at will, without performing reasonable conditions imposed by the defendant, not as a penalty for the nonpayment of a debt past due, but as the price of reviving and keeping in force the right to have a future supply of gas under the terms of the broken contract.

A prospective consumer could not go into a court and compel the defendant to furnish a supply of gas unless he would agree to observe and, be bound by every reasonable regulation that has been adopted relating to such supply. The regulation now attacked has never been declared to be unreasonable, nor has it been regarded by the courts as a penalty for the nonpayment of a sum of money at a stipulated time.

Were the company to waive its right to shut off the gas, and undertake to collect by legal process the money that had become due for a previous month or quarter, adding thereto three per cent, we would have before us the question argued at length by the able counsel for the appellants. The consumer in default does not pay the additional three per cent under stress of legal proceedings to collect it, but because he does not wish the company to exercise its conceded right to shut off the gas and thus terminate the relation between them.

We have already seen in Girard Life Ins. Co. v. Phila., 88 Pa. 393, that the plaintiff was held to have no equity to restrain the defendant from shutting off the water supply because the plaintiffs refused to pay three years’ water rent due from a former tenant with the addition of fifteen per cent, under the city regu- ■ lation then in force. Had the court, in that case, regarded the addition of fifteen per cent to the bill as an attempt to impose an illegal penalty, merely for the nonpayment of a debt at a stipulated time, the regulation authorizing it would have been stricken down and the bill sustained at least to that extent. But in Com. ex rel. v. Phila., 132 Pa. 288, where a similar-question arose with relation to a gas supply, it was held the case was ruled by the former decision and that the regulation was reasonable and valid. The necessity for it is strongly stated by the late Judge Thayer whose opinion was practically adopted as that of the Supreme Court.

Upon a careful review of the entire record we are all of opinion the complainants have shown no equitable right to the relief prayed for.

Decree affirmed.