text:
    Warren v. Johnston, Appellant.

      Appeals — Final and interlocutory orders — Review.
    Where a final order has been made granting judgment on a scire facias sur mortgage, and an appeal has been taken therefrom, the appellate court may review an interlocutory order of the court below refusing to strike off the hen.

      Mechanics’ liens — Contract—Contractor and owner — Detailed statement —Act of June 4, 1901, P. L. 431, sec. 11, par. 6.
    Where a lien is filed by a contractor on a contract with the owner for the furnishing of the material and labor and the construction of a dwelling house “a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof,” need not be set out in the lien.
    Where a building contract does not incorporate and make the specifications a part thereof, the specifications need not be filed with the lien.
    Where a part of the contract is verbal, and the items of it are not covered by the written contract, and no statement of the terms and conditions of the verbal portion of the contract is set forth in the lien filed, the lien to that extent is bad, and such items will be stricken out.
    Argued April 9, 1907.
    Appeal, No. 42, April T., 1907, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1905, No. 763 and M. L. No. 12, April T., 1905, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John G. Warren v. A. A. Jobnston.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Shafer J.
    On a rule for judgment for want of a sufficient affidavit of defense Shafer J. filed the following opinion :
    The action is sci. fa. on a mechanic’s lien against a dwelling house, built by the plaintiff as contractor with the owner, the defendant. The affidavit of defense alleges that the specifications accompanying the contract are not filed with the lien, and that the specifications were left with the plaintiff and that defendant had no copy of them. The affidavit then proceeds to state that the house was not turned over in a good and workmanlike manner; that the house was to contain a heater, not, however, to be put in by the plaintiff, but that heater pipes and registers were to be put in; that the pipes were in part put in, but roughly, and that no registers were put in the rooms, and that no flue over the cellar was built in the chimney for use with the heater; that the plumbing and gas fitting was left in a very un-workmanlike manner; that the drainage from the kitchen and bath room was not carried down away within the cellar at the top of the wall, and that all the gas fitting had to be reconstructed and repaired; that the mantels in the house were poorly set and of inferior material, and that the painting of the inside of the house was only half done, and that poor lumber was used in the house in many places. That the house cost the defendant about $3,800; and that it would be worth at least $5,000 if the work was properly done, but that defendant could not get an offer of $3,500 for it today. That to tear out the center of the house and to build a new flue for the furnace, and make the necessary alterations in the house, and buy registers would cost $1,000, as he believes he will be able to prove on the trial. That to repair the plumbing and gas fitting would cost $150 or over; to repaint and grain the house, $50.00 ; and to replace bad lumber, $150; and for other similar defects at least $150, making a total sum of $1,500. He denies that he was ever the owner of the property described in the lien or ever received a deed for it. The contract price of the house was $2,293 as appears by the mechanic’s lien, and on account thereof $1,100 was paid by the defendant, $500 thereof being paid on September 12,1904, the last work done by the plaintiff, having been done August 15,1904. The defendant further shows that in October, 1904, after he had paid $1,100 on the contract price, he endeavored to procure a loan of $900, to pay on the balance, from a building and loan association, and that from that time until June, 1905, the money was wrongfully withheld from him by the counsel of the building and loan association, who were also the counsel for the plaintiff in this case. As to the principal item of the defense, the cost of an extra flue for the use of a heater in the cellar lor which plaintiff claims $1,000, it is not alleged that it was agreed that such a flue was to be provided or was called for by the plans and specifications. None of the items of defective workmanship are set out with such particularity as to show of what they consist, and the damages alleged, considering the proportion they bear to the contract price of the house and the fact that defendant was endeavoring to borrow $900 to pay the plaintiff, in addition to what he had paid, seem to be monstrously excessive, making it so much the more necessary that they should be set out with some particularity. We are of opinion that the affidavit is not sufficient to prevent judgment.
    May 13, 1907:
    This rule is therefore made absolute.

      Jfirror assigned was the order of the court.

      Alfred M. Lee, for appellant.

      John, P. Hunter, with him Walter Lyon and James Francis Burke, for appellee.
   Opinion by

Morrison, J.,

The questions raised by this appeal are the refusal of the court below to strike off a mechanic’s lien and granting judgment on a sci. fa. thereon for want of a sufficient affidavit of defense.

The appellee contends that the question of the refusal of the court to strike off the lien cannot now be considered. The counsel for defendant moved to strike off the lien and this motion was refused. This is not a final order or judgment from which an appeal will lie. In such case the defendant must wait until there is a final judgment before he can have the action of the court reviewed: An appeal does not lie from the refusal of the court to strike off a mechanic’s claim : ” Carter v. Caldwell, 147 Pa. 370. We, therefore, hold that the defendant is entitled to have the action of the court, in refusing to strike off the lien, reviewed.

The lien was filed under a written contract between the plaintiff and the defendant, owner, for the furnishing of the material and labor and construction of a dwelling house for the entire sum of $2,293. In our opinion, the lien is substantially in compliance with the Act of June 4, 1901, P. L. 431, with the exceptions to which we will refer hereafter. We think the court did not err in refusing to strike off the lien so far as it is within the provisions-of the written contract attached and filed therewith. The lien being .by a contractor on a contract with the owner for the furnishing of the material and labor and the construction of a dwelling house, “ a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof,” need not be set out in the lien: Sec. 11, par. 6, Act of June 4,1901, P. L. 431.

That the plaintiff did not have the specifications, or a copy thereof, is a sufficient answer to the objection that they should have been filed with the lien. In addition, the contract did not incorporate and make the specifications a part thereof: Knelly v. Horwath, 208 Pa. 487. Moreover, the plaintiff was entitled to amend the lien in this respect, which was done by leave of court under sec. 51 of the act of June 4, 1901, supra: Thirsk v. Evans, 211 Pa. 239.

But we hold that so much of the lien as is based on a verbal contract, to wit: stone wall, extra, $10.00 and graining house, $60.00, is bad, because it does not comply with sec. 11, par. 4 of the act of 1901 in that, “ A copy of the contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal,” is not set forth in the lien. It is not pretended that the $10.00 and $60.00 items referred to are covered by the written contract, and if furnished at all, the contract or arrangement under which they were furnished should be set out: Knelly v. Horwath, 208 Pa. 487. Therefore, the order and judgment should be modified by striking out of the lien and the judgment those items as of the proper date so that the defendant will not be charged interest thereon. With this correction, and the amendment allowed by the court, we consider the lien valid and legal.

Now coming to the affidavit of defense: we consider it argumentative, vague, indefinite and evasive. With the exception of the $10.00 and $60.00 items it does not sufficiently set up and liquidate any damages so that the same can be set off against the plaintiff’s claim. As to its defects, we need only refer to the opinion of the learned court below and the affidavit and supplemental affidavit which speak for themselves. The plaintiff constructed ,the house and the defendant paid.him $600 before it was completed. Then two months after the defendant took possession of the house he paid plaintiff the additional sum of $500. The affidavits of defense furnish a striking example of a defendant laboring to set up a defense where none appears to exist.

The assignments of error are all dismissed, except the second, and the lien and judgment is modified by striking out the items of $10.00 and $60.00, as of the proper date, and as so modified, the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Allegheny Loan & Trust Company, Appellant, v. Gundling.
    May 13, 1907 :

      Appeals — Certiorari—Justice of the peace — Act of March 20, 1810, 5 Sm. L. 161.
    No appeal lies from a judgment of the common pleas affirming upon certiorari the judgment of the justice of the peace in an action of assumpsit.
    Argued April 9, 1907.
    Appeal, No. 78, April T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1906, No. 885, upon certiorari affirming judgment of justice of the peace in case of Allegheny Loan & Trust Co. v. Gundling.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Appeal quashed.
    Certiorari to judgment of justice of the peace.

      Error assigned was judgment of the court.

      J. E. Hem, for appellant.
    No appearance entered nor brief filed for appellee.
   Per Curiam,

This is an appeal from a judgment of the common pleas affirming upon certiorari the judgment of a justice of the peace in an action of assumpsit. The jurisdiction of the justice arose under the act of March 20, 1810, 5 Sm. L. 161 and, therefore, the twent3r-second section of that act applies. See Huntington, etc., R. R. Co. v. Fluke, 32 Pa. Superior Ct. 126.

The appeal is quashed at the costs of the appellant.


text:
    Siegwarth’s Estate
    (No. 1).

      Wills — Construction—Vested and contingent estates — “Die without issue” — Act of July 9, 1897, P. L. 213.
    Testatrix after giving shares of her estate to two sons, directed that such shares should be held by her executor “in trust for my said sons, the income and clear annual profit arising from the interest or share hereby given is to be paid to my said sons, but no part of the principal of said estate is to be given to my said sons for five years after my death, and then only when in the judgment of my executor, they shall have proven themselves to be entirely competent and qualified to take proper care of same, at which time the said trustee, shall pay the same over to my said sons, and ini the event of the death of either of my said sons without issue, then their share or shares shall revert back to my estate, and shall go to and be divided among my remaining heirs.” Held, (1) that the words “death without issue” meant death in the lifetime of the testatrix; (2) that the sons took a vested estate upon surviving the testatrix, and (3) that there is nothing in the Act of July 9, 1897, P. L. 213, to prevent such a construction of the will.
    Argued April 9, 1907.
    Appeal, No. 102, April T., 1907, b3'Magdalena Warren, from decree of O. C. Allegheny Co., Sept. Term, 1906, No. 149, distributing fund in Estate of Margaretha Siegwartb, deceased.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Miller, J., filed the following opinion :
    The question is,' what estate did Philip Siegwarth, now deceased, take under his mother’s will, in which, after making several charitable bequests, she provided as follows :
    “ Fifth. I do hereby order and direct my executor, hereinafter named, to sell all my real estate, at public or private sale, as he ma3r deem best, and to execute good and lawful deeds or assurances for the same,'also to convert all the rest of my estate into cash, and after the payment of above bequests, I do give, devise and bequeath the same in five equal shares to the following named parties, viz.: to the children of my deceased son, Charles F. Siegwarth, one share ; unto my daughter, Magdalena Werries (nee Siegwarth) one share; unto my daughter Sophia'Liebler (nee Siegwarth) one share ; unto my son Philip Siegwarth one share; and' unto my son William Siegwarth the remaining share. In respect to the share, part or portion of my estate, given to my sons Philip Siegwarth and William Siegwarth, I direct that the same be held by my executor, hereinafter named, in trust for my said sons Philip Siegwarth and William Siegwarth, the income and clear annual profit arising from the interest or share hereby given is to be paid to my said sons Philip Siegwarth and William Siegwarth, but no part of the principal of said estate is to be given to my ’said sons Philip Siegwarth and William Siegwarth, for five ■years after my death, and' then only when in the judgment of my executor, they shall have proven themselves to be entirely competent and qualified to take proper care of same, at which time the said trustee, shall pay the same over to my said sons Philip Siegwarth and William Siegwarth, and in the event of the death of either of my said sons Philip or William Sieg-warth, without issue, then their share or shares shall revert back to my estate, and shall go to and be divided among my remaining heirs.”
    Testatrix died June 12, 1905, her son Philip died on October 31, 1905, intestate and without issue, but leaving to survive him his widow, Annie Siegwarth, to whom letters of administration have been granted.
    The will worked a conversion from the time of testatrix’s death, and the entire estate so converted was devised absolutely in equal shares to the five' children. This is an antecedent absolute gift, and by it Philip’s share is a vested legacy, with the interest or income thereon to be paid to him for a period of five years or longer, under certain conditions, subject to the judgment of the executor, who was appointed trustee for that purpose, with the payment of the principal postponed for said period. The direction as to Philip’s share in the hands of the executor as trustee is a separate independent direction, and concerns itself with the time of payment and the discretion which -is conferred upon the executor.
    The devise of the estate is a separate antecedent substantive gift, independent of the time of payment, and comes within the rule of McClure’s Appeal, 72 Pa. 414, thus vesting the legacy absolutely in Philip.
    The gift of the income during the five year period, and indefinitely if the executor saw fit, constitutes a gift of the fund itself: Bruch’s Estate, 185 Pa. 194.
    Tiie direction to the executor to pay the principal only when in his judgment Philip proved himself to be entirely competent and qualified to take proper care of the same, in nowise affects testatrix’s intention to give Philip the entire beneficial interest of this bequest (Millard’s Appeal, 87 Pa. 457), where a similar devise was made, and where it was held, as must be held here, that “ the_ conditions upon which the principal was to be paid having become impossible by the act of God,” i. e., by the death of Philip,- the legacy is a vested one.
    That the reversion of Philip’s share, “ if he died without issue,” means death in the lifetime of the testatrix, is too clear to require citations from the beadroll of authorities ; not only is this conclusion established from that well-known rule of law, but it is in accord with testatrix’s intention. She directed the payment of this legacy, subject to the executor’s judgment at the end of five years. If this period had arrived, and the executor had been satisfied of Philip’s competency to accept the legacy and had paid it to him, is there any question that the legacy so paid was Philip’s absolute property irrespective of the question of his having died without issue ? If she had intended an indefinite failure of issue, or had intended that if Philip had no issue at the expiration of five years, or at any later period when the executor was ready to pay the principal that thereupon it would revert to her estate, she would have said so ; and to have said so would have rendered meaningless her direction to the executor to pay at the end of the stipulated period.
    The circumstances under which the executor paid Philip’s funeral and other expenses were unusual, and the same should not be charged against him personally, but the same should be treated as an advancement on account of his share. The approval filed by the heirs of age of this expenditure and the implied agreement that it should be proportionately charged against their respective shares, is on the presumption that Philip’s estate reverted to them ; a contrary conclusion being reached this stipulation is not binding.
    May 13, 1907 :
    A decree will be entered awarding to the administratrix of Philip his share of this estate, less the personal expenses charged against him by the executor. Upon the filing by the administratrix of her account of this fund, distribution thereof will be made according to the intestate -law.

      Error assigned was the decree of the court.

      B. S. Martin and Jere Oarneg, for appellant.

      W. A. Hudson, for appellee.
   Per Curiam,

We are of opinion that the questions raised by this appeal were correctly decided by the court below, and for the reasons given in the opinion filed by the learned judge. We will only add to the discussion' a few words as to the Act of July 9, 1897, P. L. 213. It is contended that in wills made since the enactment of that statute the words, “ die without issue,” must be construed to mean a want or failure of issue in the lifetime or at the death of the legatee, “ unless a contrary intention appear ” by the will in which the bequest is contained. According to this construction, the gift to Philip Siegwarth would be defeated by his death without issue whenever it might occur. Or, as the appellant’s counsel states the proposition, one of the conditions or contingencies annexed to the gift was that he should not die without issue. The act of 1897 is not specifically referred to in the opinion of the learned judge below, but we think he has made it quite clear that “ a contrary intention ” does appear in the will under construction. First, the gift to Philip is absolute in terms ; it is distinguishable, upon the principle enunciated in McClure’s Appeal, 72 Pa. 414, at bottom of p. 417, from the gift construed in Crawford’s Estate, 17 Pa. Superior Ct. 170. Second, the testatrix contemplated and directed payment of the principal to him at such time at or after the expiration of five years as, in the judgment of the executor, he should prove himself entirely competent and qualified to take proper care of the same. It would be contrary to the intention of the testatrix, plainly manifested in these provisions, to say that, although the gift was absolute in the first instance and the time of payment of the principal had arrived, it would be the rigbtor the duty of the executor to withhold payment, or to say that the gift would be defeated by the death of Philip without issue after that time and before payment was actually made. Whatever doubt there may be as to the intention of the testatrix in other particulars, it is very clear that she did not intend that. Plence, so far as we can see, the act of 1897 has no application, and the will is to be construed as if it had not been passed. Independently of that act, there may be room for debate whether the testatrix did not mean that if Philip should die without issue before the time for payment of the principal should arrive, his share should go to her other heirs. But she did not say so, and in arriving at her intention the general principles are to be kept in view, that the first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or, what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the contingency of death, or death without issue at any future period within the rule against perpetuities, without clear evidence of such an intent: Mickley’s Estate, 92 Pa. 514 ; also, that a bequest absolute in terms is to be regarded as vested rather than contingent, unless the language of other parts of the will indicates that the testator had a different intention. Hence, it is a general rule — which it is true must give way if “ the actual, personal, individual intent ” of the testator as manifested in the whole will requires otherwise — that if a bequest be made to a person absolute in- the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, it is to be construed to mean death, or death without issue, before the testator. There is nothing in the act of 1897 to prevent the recognition of these general principles in the construction of this will.

The decree is affirmed, the costs of this appeal to be paid by the appellant.


text:
    Siegwarth’s Estate
    May 13, 1907 :
    (No. 2).
    Argued April 9, 1907.
    Appeal, No. 101, April T., 1907, by Sophia Liebler, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 149, distributing fund in Estate of Margaretha Siegwarth, deceased.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
   Per Curiam,

The same question, and no other, is involved in this appeal as in the appeal of Sophia Liebler, in which we herewith file an opinion. Ante, p. 622.

The decree is affirmed, the costs of the appeal to be paid by the appellant.


text:
    A. G. Breitweiser Company v. Scott, Appellant.

      Appeals — Interlocutory order — Mechanic’s lien.

    No appeal lies from an order discharging a rule to strike off a mechanic’s lien.
    Argued April 10, 1907.
    Appeal, No. 159, April T., 1907, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1906, No. 37, discharging rule to strike off mechanic’s lien in case of A. G. Breitweiser Co. v. A. I. Scott or Jennie I. Scott, Owner or Reputed Owner, and A. I. Scott, Contractor.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Appeal quashed.
    Rule to show cause 'why mechanic’s lien should not be stricken off.

      Error assigned was the order of the court.

      W W. Wyant, for appellants.

      May 13, 1907 :

      E. W. Arthur, with him W. S. Thomas, for appellee.
   Per Curiam,

This is an appeal from an order discharging a rule to show cause why a mechanic’s lien should not be struck off. Prior to the Act of June 4, 1901 P. L. 431 it was held that an independent appeal did not lie from such an order, for the reason that it is not a definitive decree or judgment: Carter v. Caldwell, 147 Pa. 370; Philadelphia v. Christman, 6 Pa. Superior Ct. 29; Keemer v. Herr, 2 Penny. 175; 12 W. N. C. 90. The rule has not been changed by the act of 1901. Appeals should not be resorted to when the effect is to bring cases into appellate courts by installments ; such a practice is attended with obvious disadvantages and necessarily delays their final disposition.

The appeal is quashed and the record remitted to the court below.


author: Morrison, J.,

text:
    McCrossan v. Reilly, Appellant.

      Bailment — Rental—Landlord’s warrant — Contract.
    Installments reserved in a bailment contract for personal property furnish no ground for the issue of a landlord’s warrant, unless expressly so provided in the contract.

      Landlord and tenant — Fraudulent removal of goods — Distress.
    An open removal of the tenant’s goods from the demised premises in the daytime, in order to secure them from distress for rent, is not a clandestine, or fraudulent removal, and, without more, it is not sufficient to justify the landlord in following them, and distraining within thirty days.

      Bailment — Seizure of goods — Damages—Right of bailee.

    Where goods have been illegally taken from a bailee in possession, the latter has a right to recover as against the wrongdoer, the market value of the goods, and the bailee will then be liable over to the bailor for such interest as he may have in the goods.
    Argued April 10, 1907.
    Appeal, No. 165, April T., 1907, by defendant, from judgment C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 861, on verdict for plaintiff in case of Mary A. Mc-Crossan v. P. J. Reilly.
    Before Rice, P. J., Henderson, Morrison, Head and Porter, JJ.
    Affirmed.
    Trespass for the wrongful taking of personal property. Before Shaper, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part .as follows :
    In the summer of 1898, Joseph Shaffer was in possession of a farm called the Thon farm, in Penn township in this county. It seems that Mr. Thon, the owner of the farm, had leased it to a man by the name of Habbeger; that Habbeger had been sold out by the sheriff and the leasehold had come into the possession of H. F. Doris ; that Doris in that way got possession of the farm. [Then Shaffer being on the farm and working for Doris, an arrangement was made in January, 1898, by which it was agreed between Doris and Shaffer that Doris would rent to him certain personal property of which there is a considerable list annexed to this paper exhibit No. 3. That starts with the leasehold of Thon’s farm — he did not have that] [11] —and thirty cows, seven horses and so on. Then it is agreed that he is to pay every month a certain rent for the use of this personal property, and it is further agreed that, by getting Doris’s consent in writing, he might sell any of the leased cows or horses or implements, from time to time, and replace them with others bought at his own expense, and that when they were bought and replaced in that way they would become part of the leased property under the lease.
    We have the evidence of Shaffer and his mother, who say that it was a mistake in the lease in regard to the number of cows ; that he had but eighteen cows from Doris ; that when he went into this arrangement in July, 1898, he actually got eighteen cows from Doris ; that then in July, or some time in the summer of 1898, he bought twelve other cows from Mr. Reneker. [If it had appeared that Doris had given his consent to Shaffer to sell some of the cows he got and buy other cows in their place and that he had gotten consent from Reneker to put them in their place, then I would say that those cows would be his under that lease and Reneker would lose his rights in them. But as it does not appear that anything of that kind was done, I have to say to you that the proper interpretation of that transaction would be that those cows that were bought from Reneker by Shaffer were not under this lease. [12]
    Doris, in March, 1898, assigned his rights under this contract to Mr. Reilly, who is the defendant in this case. So Mr. Reilly, in that respect, took the place of Doris and had whatever rights Doris had. Then, in the summer of 1898, Mr. Reilly, claiming to have a right to issue a landlord’s warrant —and there is some reason for him to think he had that right— was going to issue a landlord’s warrant on Shaffer for this personal property, and about that time Shaffer took these cows — not all the cows he had at that time which was twenty-eight, as I understand, which would be some, at least, of the cows Doris had turned over to him — but these twelve cows and two other cows that were left out there by Reneker to be fattened, and took them away off his farm altogether, before any levy was made and turned them back to Reneker, telling Reneker he could not pay for them; Reneker thereupon made a lease of the cows to Mrs. McCrossan, who is the plaintiff in this case, and that lease was for the twelve cows which he had in fact sold to Shaffer under this conditional sale, and for two other cows that he had sent out there to be fattened, making fourteen cows. He gave that lease to Mrs. McCrossan on July 25, 1898; under the arrangement with Mrs. McCrossan that he lease to her, among other things, these fourteen cows— perhaps this lease is only for the fourteen cows — for a total rent of $250 for the term of ten months from August 1, 1898, payable in installments of $25.00 each month, and she agreed to take good care of this property and at the end of the lease, that is, at the end of the ten months, to deliver up the cows to him, or in case she sold any of them to replace them with other cows and deliver them up to him. The agreement provided then in case she wanted to purchase the cows at any time she might pay up the balance of $250, or at the end of the ten months, if she had paid the whole rent, she could have the cows for the rent — a very ordinary lease by which property is sold on the installment plan, or bailed with the intention of being sold at the end of the bailment. The result of that was that Shaffer having turned back the cows to Mr. Reneker and Mr. Reneker having made the lease to Mrs. Mc-Crossan, Mrs. McCrossan was the bailee of the cows from Mr. Reneker; and she had paid up to the time of this levy, or the time of the taking of these cows from her, a certain amount which I do not think is material in this case, and which I believe is not disputed, $40,00. Then, when she had possession of these cows in this way, Mr. Reilly, no doubt under the impression that he had a right to take them in some way, did take away the cows (by some proceeding which does not concern us here at all) to another farm, took them back again finally to the Thon farm, and then he issued a landlord’s warrant, as he called it, upon this lease, and sold them there, and in that way the cows were taken out of his possession and the possession of both of them.
    [As I have said before, that landlord’s warrant of his did not justify the selling of them in any way, because he had no lease upon which he could have issued a landlord’s warrant. So that it simply results in his having, we may say, simply taken the cows, no doubt taken them under a claim of a right, not as I understand it, however, actually justified in the eyes of the law. [13]
    [That, I say, is what the evidence tends to show. If you believe that to be the state of facts — that is the evidence on the part of the plaintiff and on the part of the defendant which is not disputed — that the facts are substantially as I have said as to the way these cows were taken, then the plaintiff is entitled to recover; and in my opinion the plaintiff is entitled to recover notwithstanding the fact that she had not paid very much for the cows, was not the absolute owner of them, but that she and Reneker together amounted to an owner, Reneker having certain rights and she having certain rights. She being in the actual possession of this property, and not' having done anything, so far as appears by the evidence, which would give Reneker a right to the immediate possession, was the only person who could maintain an action to recover for the taking away of the cows, they being taken from her possession, and she would be entitled to the value of the cows at the time they were takeh, matters between her and Reneker would have to be adjusted in some way, but that does not concern you. The only question for you to determine, it seems to me, is what was the value of these cows at the time they were taken. [14]
    The evidence you have on that is of Mr. Reneker, who tells you that they were worth $85.00 a piece. He does not undertake to remember the particular cows, and he was not very strenuous in his assertion that they were worth $35.00. -He thought that on a former occasion he had put them at $40.00. He thought they were fairly worth $35.00. That is the only actual evidence we have on that subject. We have the fact, which you are entitled to take into consideration along with that, in making up your minds what they were worth, that he had agreed in this agreement to let Mrs. McCrossan sell them for what amounted to $250, which would be much less than $35.00 apiece. You take that circumstance and what he said about the cows, and make up your minds as to what they were actually worth at the time. And whatever they were actually worth at the time, together with an allowance, not a calculation of interest exactly, but an allowance for the lapse of time, not exceeding the interest on the money, you would allow to the plaintiff; I say that if you believe the evidence on the part of the plaintiff is entitled to recover some amount, whatever you find the cows to be worth, with an allowance for the lapse of time between the summer of 1898 and this time as additional damages, not exceeding the rate of six per cent, interest. [You will find for the plaintiff, that is, if you believe the evidence of the plaintiff.] [15]
    Verdict and judgment for plaintiff for $600. Defendant appealed.

      Errors assigned among others were (11-15) above instructions, quoting them.

      L. C. Barton, for appellant.
    — Rent may issue, not only from lands and tenements corporeal, but also from the personal property necessary for their proper enjoyment: Vetter’s Appeal, 99 Pa. 52; Mickle v. Miles, 31 Pa. 20; Karns v. McKinney, 74 Pa. 387.
    We respectfully submit that the court below erred in its charge as to the measure of damages: Lyle v. Barker, 5 Binn. 457 ; Srodes v. Caven, 3 Watts, 258 ; Levan v. Wilten, 135 Pa. 61; Rose v. Story, 1 Pa. 190.
    May 13, 1907:

      Lee C. Beatty, for appellee.
    — An open removal of the tenant’s goods from the demised premises, in the daytime, in order to secure them from distress for rent, is not a clandestine nor fraudulent removal and is not sufficient to justify the landlord in following them, and distraining within thirty days : Owens v. Shovlin, 116 Pa. 371; Grant & McLane’s Appeal, 44 Pa. 477; Grace v. Shively, 12 S. & R. 217; Hoops v. Crowley, 12 S. & R. 219; Slocum v. Clark, 2 Hill, 475 ; Adams v. LaComb, 1 Dall. 440; Coles v. Marquand, 2 Hill, 447 ; Hastings v. Belknap, 1 Denio 190; Sleeper v. Parrish, 7 Phila. 247; Cadwalader v. Tindall, 20 Pa. 422.
    There was no right of distress reserved in the bailment between Doris and Shaffer, which was assigned to Reilly, and Reilly not having any reversion in the land had no right to issue a landlord’s warrant: Manuel v. Reath, 5 Phila. 11; Ege v. Ege, 5 Watts, 134; Parmenter v. Webber, 8 Taunton, 593.
    The court below ruled, and we think rightly, that Mary A. McCrossan was entitled to recover as against Reilly, and that the measure of damages was the market value of the cows at the time of their taking by Reilly: Lyle v. Barker, 5 Binn. 457; Guttner v. Pacific Steam Whaling Co., 96 Fed. Repr. 617; Atkins v. Moore, 82 Ill. 240.
   Opinion by

Morrison, J.,

This is an action of trespass, and a verdict and judgment thereon having gone against the defendant he appealed. The facts of the case are somewhat complicated, and, at the risk of being tedious, we will endeavor to state the material facts in this opinion.

Charles Thon was the owner of a certain dairy farm in Penn township, Allegheny county, and on February 18, 1895, he leased this farm to one John Habbegger for the term of seven years. This lease was in writing. Afterwards, by sheriff’s sale, said lease became vested in H. F. Doris, who stocked the farm and rented and used the same as a dairy, Joseph Shafer being his manager. On January 3, 1898, Doris entered into a bailment contract with Shafer whereby Doris let to Shafer all the personal property oh the farm, including, as stated in the contract, thirty cows, but, as matter of fact, it is conceded that there were only eighteen cows on the farm at the time. Shafer was to pay $83.83 per month during the continuance of the lease, take good care of the property and to deliver up and return the same, together with all replacements and additions made, and further, not to mortgage, sell or rent the same or assign the agreement, or in any way'part with the possession of the said property, or remove the same from the said premises, unless Doris gave his consent thereto in writing. This written bailment provided that Shafer was to hold the farm under and subject to the provisions of the lease made by Thon to Habbegger, and that Shafer was to pay to Thon, in addition to the monthly sum of $83.33, the rental payable under the terms of the Thon-Habbegger lease as the same became due. On March 1, 1898, Doris assigned all his interest in above bailment to P. J. Reilly.

At various times from April to July, 1898, Shafer purchased twelve cows from one T. J. Reneker, a cattle dealer, Shafer to pay for the same in installments, but if he found that he could not meet these installments he was to return the cattle to Reneker, the ownership of the cattle to remain in Reneker until they were paid for. While the cattle remained with Shafer he received two additional cows from Reneker, the same to be put in good condition. In the latter part of July, 1898, Joseph Shafer caused the fourteen cows, delivered into his possession by Reneker, to be driven to a farm about a mile from the Thon farm and there delivered the cows into the possession of Reneker on said farm, called the Limegrover farm. Reneker took possession of the cows on the latter farm and made a bailment of them to Mary A. McCrossan, plaintiff in this case, who was then living on a farm called the Johnson farm. Mary A. Mc-Crossan had the cows driven from the Limegrover farm to the Johnson farm, which she was occupying. In July, 1898, Patrick J. Reilly came on the Johnson farm and took the cows from the possession of Mary A. McCrossan and drove them to and placed them on the Thon farm, and afterwards, on August 4, 1898, he issued a landlord’s warrant against Joseph Shafer, and thereunder he caused the cows to be sold. Mary A. McCrossan, plaintiff, then brought this action in trespass to recover damages from ReiUy for the unlawful taking and conversion of the said, cows by him.

As to the above facts we do not understand there is any serious dispute. We understand it to be conceded that there was no rent due and unpaid on the Thonfarm under the Thon-Habbegger lease of February 18,1895, at the time Reilly seized the cows, all rent due on the farm having been paid until the following October. The bailment contract of January 3,1898, between Doris and Shafer, was entirely in regard to personal property, and it contains no authority to proceed by landlord’s warrant to collect the installments or any of them mentioned therein. Therefore, when Reilly became the assignee of Doris under said bailment contract, it gave him no .right to proceed by landlord’s warrant to collect the installments falling due under said contract. We think it may be stated as a legal proposition that installments reserved in a bailment contract for personal property furnish no ground for the issue of a landlord’s warrant, unless expressly so provided hi the contract.

In Commonwealth v. Contner, 18 Pa. 439, the Supreme Court held, as stated in the syllabus: “ Rent must issue out of land ; and if real and personal property leased are so mixed together in the lease that it cannot be determined how much of the consideration is to be paid for the chattels, and how much for the use of the real estate, there can be no distress for nonpayment of it.” That case was afterwards qualified in Mickle v. Miles, 31 Pa. 20, where it was said by Lowry, J.: “ The ordinary definition of rent, as a profit issuing yearly out of lands and tenements corporeal, is defective in overlooking some of the cases that belong to the class; as where a furnished house or a stocked farm is leased, which are common cases. ... In such cases the personal property is really a part of the consideration of the rent, and it is only by a fictitious accommodation of the case to the defective definition that it can be said that the rent issues exclusively out of the land.” But that modification does not authorize the collection of installments due on a bailment contract for personal property by landlord's warrant. Therefore, on the facts in the present case, we cannot see that Reilly was entitled to issue a landlord’s warrant and sell the cows, bailed by Doris to Shafer, by virtue of the bailment contract; and certainly he could not sell them for rent due on the Thon farm, because that rent had been paid in advance until October 1, 1898.

But assuming for the purpose of argument that Reilly had authority to issue a landlord’s warrant to recover payments due under the Doris-Shafer lease or contract of bailment, it will still be found that he had no right to seize the fourteen cows while they were in possession of Mrs. McCrossan on the Johnson farm. This because there was no clandestine or fraudulent removal of the cows from the Thon to the Limegrover farm. The cows were removed from one farm to the other about eleven o’clock A. M., shortly prior to July 25,1898, and the landlord’s warrant was not issued by Reilly until August 4, 1898. . The learned counsel for the appellant concedes in his argument that such removal of the cows in the daytime was not clandestine, but he contends that it was fraudulent. We understand the law to be that an open removal of the tenant’s goods from the demised premises, in the daytime, in order to secure them from distress for rent, is not a clandestine or fraudulent removal, and, without more, is not sufficient to justify the landlord in following them, and distraining within thirty days: Grace v. Shively and another, 12 S. & R. 217; Hoops and another v. Crowley, and others, 12 S. & R. 219; Grant & McLane’s App., 44 Pa. 477; Owens v. Shovlin, 116 Pa. 371.

The statute as to the fraudulent removal of goofis so as to avoid distress applies only to the goods of the original lessee and his assignee, which have been removed from the demised premises, not to goods taken by a creditor therefrom with the assent of the tenant in payment of a bona fide debt, though the creditor knows the rent is due, and apprehends the landlord may distrain: Taylor’s Landlord and Tenant, sec. 577; Adams v. La Comb, 1 Dallas, 440.

In Grace v. Shively, 12 S. & R. 217, Tilghman, C. J., said : “ But where there is no evidence of more than a simple removal in the daytime without the knowledge of the landlord, there is no ground for presumption of fraud, nor will the law suffer it to be presumed. The tenant is not bound to give notice to the landlord that he is about to remove his goods, nor is he under any obligation not to remove them.”

At first blush we were inclined to think that the question of whether Shafer fraudulently removed the cows was for the jury, but an examination of the cases and reflection brings us to the conclusion that there was no evidence whatever of fraud in the removal of the cows in the present case. Shafer was indebted to Reneker for them and, finding that he could not pay them, it was his duty to return them to Reneker.

Upon both grounds our judgment is against the right of the appellant to distrain. We are clearly of the opinion that he could not distrain for the payments due under the Doris-Shafer bailment contract; we are equally clear in our opinion that he could not distrain on account of rent due on the Thon farm because it is conceded that' no rent was due at that time. Therefore, we are clearly of the opinion that the appellant was a trespasser, pure and simple, in taking the cows from the possession of the plaintiff and afterwards selling them on his landlord’s warrant.

The remaining question for consideration is the measure of damages. Assuming that the plaintiff was entitled to recover the full value of the cows, with not to exceed legal interest on the value from the time of the taking to the recovery of her judgment, there is sufficient evidence to sustain the verdict and judgment for $600.

The appellant contends that inasmuch as the plaintiff was only the bailee of the cows that she was only entitled to recover the amount she had paid on account to Reneker, and that appellant ■would still be liable to Reneker. We think, however, that the plaintiff had a right to recover the market value of her cows, she being liable over to Reneker for such interest as he had therein: Lyle v. Barker, 5 Binney, 457 ; see opinion of Tilghman, C. J., p. 459; 28 Am. & Eng. Ency. of Law (2d ed.), p. 676, where it is said: “ A bailee is universally recognized as having, such a special property in the chattels bailed as will enable him to maintain trover therefor against third persons who wrongfully deprived him of possession.”

And on page 729 : “ Though the plaintiff has only a special or limited interest in the chattels converted, the general ownership being in a third person, he may still recover, as against a stranger to the title, the full value of the chattels, and is not limited to recovery for the value of his special or limited interest.”

And on page 730 : “ Where the plaintiff has only a special limited interest in a chattel converted, with a right to possession, and the general property is in the defendant, the plaintiff is entitled to recover only the value of his special or limited interest, and not the full value of the property.” See Guttner v. Pacific Steam Whaling Co., 96 Fed. Repr. 617; Atkins v. Moore, 82 Ill. 240.

We think the cases of Srodes v. Caven, 3 Watts, 258; Rose et al., v. Story, 1 Pa. 190, and Levan v. Wilten, 135 Pa. 61, cited by counsel for appellant, are not controlling as to the measure of damages under the facts in the present case.

A careful consideration of the evidence, the fifteen assignments of error and the arguments of counsel, leads us to the conclusion that the assignments should be dismissed, and the judgment is affirmed.


author: Beaver, J.,

text:
    Finefrock v. United Traction Company, Appellant
    (No. 1).

      Negligence — Street railways — Collision between car and wagon — Case for jury.

    In an action against a street railway company to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the plaintiff while driving in a buggy stopped at a street crossing to permit a car to go by, and after looking and not seeing another car started to cross; and that the buggy had nearly cleared the tracks when it was struck by a car going at such a high rate of speed that it was not stopped until it had run 260 feet beyond the point of the accident.
    Argued April 11, 1907.'
    Appeal, No. 51, April T., 1907, by defendant, from judgment of C. P. No. 2, Jan. T., 1902, No. 857, on verdict for plaintiff in ease of David C. Finefrock and Margaret Finefrock, his wife, v. The United Traction Company.
    Before Rice, P. J., Henderson. Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Young, J,

      May 13, 1907:
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict for David C. Finefrock for $1,500 and for Margaret Finefrock for $1,500. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      James O. Gray, with him Clarence Burleigh and William A. Challener, for appellant,
    cited: Thomas v. Ry. Co., 132 Pa. 504; Carson v. Federal Street, etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Co., 150 Pa. 180; Wheelahan v. Traction Co., 150 Pa. 187; Winter v. Ry. Co., 153 Pa. 26; Gilmore v. Federal Street, etc., Ry. Co., 153 Pa. 31; Downey v. Pittsburg, etc., Traction Co., 161 Pa. 131; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519 ; Callahan v. Traction Co., 184 Pa. 425 ; Smith v. Electric Traction Co., 187 Pa. 110; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Ave. Traction Co., 194 Pa. 75; Boehmer v. Traction Co., 194 Pa. 313; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Burke v. Traction Co., 198 Pa. 497; Tyson v. Traction Co., 199 Pa. 264; Harman v. Traction Co., 200 Pa. 311; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107.

      Noah W. Shafer, for appellees,
    cited: Hamilton v. Traction Co., 201 Pa. 351.
   Opinion by

Beaver, J.,

On Jackson street, in the city of Allegheny, at the point where the accident which is the subject of inquiry in this case occurred, and for at least 260 feet east and west thereof, two street railway tracks are laid. Buena Vista street intersects Jackson at right angles. Margaret Finefrock, one of the defendants, with her son, aged about fourteen years, and a nephew, aged about two years, drove down Buena Vista street toward Jackson in a top buggy, the top being up. Upon reaching Jackson street, with the nose of her horse within four or five feet of the railroad track, as she and her son both testify, she waited for a passing car which was going east. After it passed, she and her son both looked east, leaning forward to do so, to ascertain whether or not another car was approaching. They looked again, as they testify, immediately upon entering upon the track. No car being in sight, they drove upon the track, and, after the horse had fairly entered thereon and the front wheels of the buggy were just about to cross the first rail, a car was seen approaching, which they estimated to be 125 feet away. Both reached for the whip, but, before securing it, the rear of the buggy was struck, the hind wheels separated from the remainder of the vehicle, which remained attached to the horse, all of the occupants were thrown into the air, and Mrs. Finefrock, in coming down, struck her head upon a rail of one of the tracks.

From the building line of Jackson street to the curb is ten feet. From the curb to the first rail of the west-bound track is 8^ feet. East of Buena Yista street is Monterey. From the west curb of Buena Vista to the east curb of Monterey is 260 feet. West of Buena Vista street the same distance is Irwin avenue. A single track runs east of Monterey to Arch street beyond. The double tracks, going north on Monterey, make a curve in. turning onto Jackson and at that point the tracks are curved toward and four’feet nearer the curb line of Jackson than at Buena Yista. This may be important, as tending to explain, if explanation be needed, why the car, assuming it to have been at that point, was not seen by the occupants of the buggy.

The car which caused the accident was evidently running at a very unusual rate of speed. As to this fact, William Fine-frock says in his testimony: “I never seen anything come faster. I couldn’t say just what rate it was coming — appeared to be going like lightning.” Mary Sweeney, a passenger upon the car, said: “ I got on the car at the market house and it went at a reasonable rate until it came to Jackson street. Just when it was going to turn down Jackson street it swung so that there was no stop until it came to Irwin avenue.” Cur-less Wallace, who was standing at the door of his shop when the car passed, said: “ It was coming at a terrific speed. It passed me in an instant of time. It had to pass me before I could get to the people.” It appears also, from the testimony, that, after striking and practically demolishing the buggy, the car was not stopped until Irwin avenue, 260 feet away, was reached. One of the occupants of the car says, in her testimony : “ After the buggy and lady got hit with the car, the car did not until we came to Irwin avenue; the motorman could not stop it.”

The foregoing statement is based upon the plaintiff’s testimony. Some of the essential facts were disputed and some of the plaintiff’s witnesses contradicted by those of the defendant, but it was not for rhe trial judge to pass upon the credibility of the witnesses or to reconcile their contradictions.

The only assignment of error here is the refusal of the court to affirm the deferidant’s point, “ That, under all the evidence, the verdict must be for the defendant.”

The defendant’s second point, which was, “ If the jury find that the plaintiff, Mrs. Finefrock, or her son, William Fine-frock, who was driving the buggy, failed to look in the direction of the coming car just before entering upon the track, the verdict must be for the defendant,” was affirmed, as was also the third point, which is: “ If the jury find that the car was within 100 feet of Buena Vista street when Mrs. Fine-frock was about to cross the track, and the car was coming at such a rate of speed that it must have been apparent that they could not get across in time to avoid a collision, the verdict must be for the defendant.” This was as much as the defendant could reasonably ask. This is not the case of a person crossing a street car track being struck immediately upon entering upon it. The horse bad crossed the track, the front carriage of the buggy was apparently clear of it, and the hinder part of the buggy was struck and demolished.

The testimony of one of the plaintiff’s witnesses, who sat at the window in the front of the car, was that the horse and buggy could be plainly seen crossing the track. If so, it was the duty of the motorman to slacken the speed of his car. It is probable, however, that this could not be done, but the plaintiff was not responsible for the failure. The fact that the car ran the entire distance from Buena Vista street to Irwin avenue after the accident would seem to be evidence that it was beyond the control of the motorman.

The case, as we view it, ivas clearly one for the jury. They were properly instructed' as to the duty of the plaintiff to establish the negligence of the defendant, and present a case clear of contributory negligence.

The substance of the cases relied upon by the defendant was fairly set out in its second and third points, which were affirmed by the court.

We, therefore, see nothing in the ciase of which the defendant can rightfully complain. The case was well tried and fairly submitted to the jury. Under the testimony the verdict was not excessive.

The assignment of error is overruled.

Judgment affirmed.


text:
    Finefrock v. United Traction Company, Appellant
    May 13, 1907:
    (No. 2).
    Argued April 11, 1907.
    Appeal, No. 52, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1902, No. 857, on verdict for plaintiff in case of David C. Finefrock and Margaret Finefrock, his wife, v. The United Traction Company.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Beaver, J.,

In the court below two verdicts were rendered in a joint action, brought by the plaintiffs against the defendant. J udgment being entered thereon, separate appeals were taken to this court.

We have just filed an opinion in No. 51, ante, p. 638, in which, for the reasons therein stated, the judgment for one of the plaintiffs is affirmed. For like reasons, which need not here be repeated, the judgment in favor of the other defendant is likewise affirmed.


text:
    Smith v. Illinois Central Railroad Company, Appellant.
    May 13, 1907:

      Carriers — Common carriers — Railroads—Bill of lading — Draft—Negligence.

    Where a railroad company accepts a quantity of grain, and at a connecting point delivers it to a connecting line for transportation to the consignee, and at the point of connection an elevator company from whom the consignee purchased the grain assumes control of it, has the grain weighed, and sends the bill of lading with draft attached for an amount based on a much larger weight than the weight of the grain, and the consignee pays the draft in order to secure the grain, the elevator company which was guilty of the negligence which caused the loss is liable, and not the initial carrier.
    Argued. April 11, 1907.
    Appeal, No. 77, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1902, No. 463, on verdict for plaintiff in case of J. W. Smith etal., trading as Smith & Company, v. Illinois Central Railroad Co.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace. Before Frazer, P. J.
    The opinion of the Superior Court states the case.

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

      M. J. Hosack, of Hosack, Knox <$• Hosack, for appellant.
    —The defendant was not guilty of negligence: Rickerson Roller Mill Co. v. Grand Rapids, etc., R. R. Co., 67 Mich. 110 (34 N. W. Repr. 269) ; Keller v. R. R. Co., 10 Pa. Superior Ct. 240; Seibert v. Ry. Co., 15 Pa. Superior Ct. 435.

      Robert M. Ewing, fir appellee.
   Opinion by

Morrison, J.,

In this action of assumpsit both parties requested binding instructions, and tbe learned court gave a binding instruction in favor of the plaintiff, refusing defendant’s motion, and thereafter refused judgment for the defendant non obstante veredicto. A proper disposition of the case seems to require a careful statement of the facts as they were proved and conceded.

The appellees are engaged in business in the city of Pitts-burg and on April 15, 1901, they ordered a car load of oats from the Paxton Elevator Company of Kanakee, Illinois,- the oats were shipped in car No. 13,398 of the Illinois Central Railroad Company from Tucker, Illinois, to Chicago, where they were transferred into car No. 7,445 of the Pittsburg, Fort Wayne and Chicago Railroad Company. When the oats reached Chicago they were weighed by the weighmaster of the Illinois Central Railroad Company and found to weigh 42,600 pounds. The oats were not weighed at Tucker, Illinois, when they were shipped by R. G. Risser, because there were no scales at that place, and the shipment was with ‘-weight subject to correction.” It is a conceded fact that the appellant company and the Pittsburg, Fort Wayne and Chicago Railroad Company delivered to the plaintiffs, at Pittsburg, Pennsylvania, the exact quantity of oats that were received at Tucker, Illinois. The appellant company carried the oats from the latter place to Chicago under a special contract in the bill of lading, relieving it from liability by delivering the said oats to the consignee, “ if at a station on its own line, or to such carrier whose line may be part of the same route to the place of destination,” it being distinctly understood that its responsibility shall cease when it delivers the same to the consignee or the carrier.

Under the proved and conceded facts, the appellees purchased the oats from the Paxton Elevator Company, and that company purchased them from R. G. Risser at Tucker, Illinois. We think the undertaking of the appellant company was to deliver the oats at Chicago to the order of the Paxton Elevator Company, notwithstanding the fact that the bill of lading, when it left Tucker, Illinois, contained the following, under marks and consignees : “ Order of Paxton Elevator Co. Notify J. W. Smith, Pittsburg, Pa. Care Pittsburg & Fort Wayne & Chgo. Ry.” If we are. correct in this view, then it is clear that the appellant company fully performed its contract when it delivered the oats to the Paxton Elevator Company by transferring the same into car No. 7,445 of the Pittsburg, Fort Wayne and Chicago Railroad Company. Our reasons for holding that the appellant company is not liable for anything happening after it delivered the oats at Chicago are the following : Smith & Company ordered and purchased the oats from the Paxton Elevator Company; that company received the bill of lading to Chicago and undertook to have the oats weighed by the board of trade weighmaster of Chicago; it also appears that the elevator company inserted, or caused to be inserted, in the bill of lading, the following items which were not therein when it reached Chicago, to wit: “ Bulk Oats, 62780, into 7445 P, F. W. & C.” The Paxton Elevator Company then drew a draft, dated April 26, 1901, for $531.48, on J. W. Smith & Company, Pittsburg, Pa., and attached thereto certificate of the board of trade weighmaster, dated March 28, 1901, “from car No. 13399 car E. L. to No. 61886 Net Weight 62780 contents corn.” The draft and certificate, with the bill of lading, were then sent to a bank at Pittsburg and - Smith and Company could not, under the arrangement, get the oats until they paid the draft and secured possession of the bill of lading. In this connection, it should be noted that the appellant company weighed the oats at Chicago and took the receipt of the Pittsburg, Fort Wayne and Chicago Railroad Company therefor, which receipt plainly states, as to destination, J. W. Smith, Pittsburg, Pa., as to articles, bulk oats, weight, 42,600. This is conceded to be the correct weight of the oats. Now whether the Paxton Elevator Company actually inserted in the bill of lading the erroneous weight, or only forwarded the bill of lading containing it, to Smith & Company, it must be held responsible for the error because it either made it or ratified it. Smith & Company suffered no loss and had no cause of action against anybody until they were induced by the Paxton Elevator Company’s draft, erroneous certificate of weight and erroneous weight in the bill of lading, to make the overpayment, at Pittsburg, for which this suit was brought. An additional reason for holding that the cause of action arose at Pittsburg, is that the appellees could not get the oats until they paid the draft and thus secured the bill of lading. This we think conclusively shows that until the draft was paid, the title to the oats remained in the Paxton Elevator Company.

The learned counsel for the appellees practically concedes this position in his argument: “ The bill of lading with a certificate of weight was attached to a draft for #531.48 and sent to a local bank in Pittsburg. The amount called for in the draft was a proper charge for 62,780 pounds of oats, and under the custom of shipments ‘ to order ’ appellees were forced to pay the draft before they could secure the car of oats. There were but 42,600 pounds of oats in the car. Appellees had paid #171.80 too much and brought an action against the appellant to recover this sum.” We think the conceded facts of this case justify the above concession, and that it conclusivety fixes the title to the oats in the Paxton Elevator Company until the appellees paid the draft and secured the bill of lading. If we are correct in this conclusion, it follow that the appellees’ cause of action arose in Pittsburg on the payment of the draft to the elevator company. There was no privity of contract between the appellees and R. G. Risser, from whom the elevator company purchased the oats at Tucker, Illinois. The appellees purchased the oats from the elevator company and paid that company therefor, and did not and could not receive the oats except on such payment.

It is an undisputed fact that the appellant company correctly weighed the oats at Chicago, and if the elevator company had relied on that weight and had sent with the draft the correct weighbill of April 24, 1901, for bulk oats, weight 42,600 pounds, the mistake, which iirjured the appellees, would not have occurred. It is interesting here to note the cause of the mistake. The elevator company, evidently, not being satisfied with the appellant company’s weight, applied to the board of trade weighmaster of Chicago to weigh the oats in ear No. 13,398. That weighmaster furnished the certificate attached to the draft, and it was dated March 28, 1901, and it was for 62,780 pounds of corn. Evidently, corn that had been in that car a month prior to appellee’s purchase of oats.

The appellees are complaining of the negligence of. the defendant company, but it seems to us that the payment of the draft of April 26, 1901, with a weighbill attached, dated March 28, 1901, for 62,780 pounds of corn, was a very negligent act, in view of the fact that the appellees’ purchase was oats and not made till April 15, 1901. We think the negligent act of the appellees in this respect ought, at least, to require them to look to the party making the mistake, the Paxton Elevator Company, for their damages.

We note that E. E. Carroll, station agent for the appellant railroad company at Tucker, Illinois, testified that he made the bill of lading for the oats, and that when it left his hands the words “ into 7445 P. F. W. & C.,” also the figures “ 62780 ” were not shown therein. This witness also testified that he only hilled the car to Chicago, and did not bill it through to Pittsburg, and that he inserted, “ Notify J. W. Smith & Company, Pittsburg, Pa.,” at the request of R. G. Risser. It can readily be inferred that Risser had this done on the request and for the accommodation of the Paxton Elevator Company. When we consider the hill of lading, the weighing and delivery of the oats at Chicago, the conduct of the Paxton Elevator Company in accepting the bill of lading and inserting therein, or using it after the insertion, of the figures “ 62780 ” and “into 7445 P. F. W. & C.,” and then forwarding the draft and erroneous certificate of weight and erroneous bill of lading to the bank at Pittsburg, we have no difficulty in reaching the conclusion that the obligation of the appellant company ended when it correctly weighed the oats and delivered the same to the connecting line at Chicago. This view of the case relieves it from the contention of the counsel for the appellees that the appellant company is liable for the mistake, and that it could not limit its liability by the language above quoted from the bill of lading. The counsel quotes from an alleged act of assembly of Illinois : “ That whenever any property is received by a common carrier to be transported from one place to another, within or without the state, it shall not be lawful for such carrier to limit his common-law liability, safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.” If the above is the statute of Illinois, which we do not know,' as it was not put in evidence, it is sufficiently answered by our conclusion that the undertaking of the appellant company was only to transport the oats to Chicago and deliver the same to the Pittsburg, Fort Wayne & Chicago Railroad Company, and that the Paxton Elevator Company accepted and ratified such delivery. ■

This view of the case renders it unnecessary to discuss the authorities cited by the counsel, to wit: Muschamp v. Lancaster, etc., Ry. Co., 8 Meeson and Welsby’s Reports, 421; Illinois Central R. R. Co. v. Frankenberg, 54 Ill. 88; Baltimore & Philadelphia Steamboat Company v. Brown, 54 Pa. 77; Wabash, etc., Ry. Co. v. Jaggerman, 115 Ill. 407 ; Bigelow on Estoppel, 475, and Brooke v. N. Y., L. E. & W. R. R. Co., 108 Pa. 529.

But if we view the appellees’ cause of action as a Pennsylvania one, the law does not seem to be here as the counsel contends it is in Illinois. In Keller v. Railroad Co., 10 Pa. Superior Ct. 240, we held, as stated in the syllabus : “ In an action of, assumpsit against a carrier, where the liability of the carrier ceased at its freight station, under the written contract, and no negligence was alleged up to that point, and the goods were then and there delivered to a connecting company, in order to a recovery, the burden is upon the plaintiff to overthrow the written provisions of the contract evidenced by the bill of lading.” That case was appealed to the Supreme Court, and was affirmed in Keller v. Railroad Co., 196 Pa. 57. The latter case, upon the.facts in the present one, would exempt the appellant company from liability, even if the oats had been damaged or entirely destroyed while in transportation over the Pittsburg, Fort Wayne & Chicago Railroad. But we have no such question in the present case. It is a conceded fact that the exact quantity of oats shipped by Risser from Tucker, Illinois, were safely carried from there to Chicago by the appellant company, and from Chicago to Pittsburg by the connecting line, and delivered in good order to the appellees at Pittsburg. It, therefore, seems very clear to us that if the appellees paid too much money on the draft, on the facts already referred to, they have no just ground of complaint against either of the railroad companies.

In Am. Express Co. v. Second National Bank, 69 Pa. 394, it was held : “ That at most the companies were liable as carriers only to the end of their own route, and afterwards were forwarders, responsible only for reasonable care and diligence in selecting proper carriers.” See also Camden & Amboy Railroad Co. v. Forsyth, 61 Pa. 81.

In the present case, the appellant met its full obligation by promptly and safely transporting the oats to Chicago, and there selecting a forwarding company which promptly and safely delivered the same oats to appellees at Pittsburg. This must be so because the elevator company accepted the bill of lading to Chicago, and from there to Pittsburg it assumed ownership and control of the oats until they were paid for by Smith & Company.

The assignments of error are sustained, judgment reversed, and judgment is now' granted in favor of defendant non obstante veredicto.


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    Black Diamond Distilling Company’s License.

      Liquor law — Distiller’s license — Refusal of license — Discretion of court.

    The refusal to grant a distiller’s license “after hearing and due consideration,” will not be reversed by the appellate court, where there is nothing to show that the license was refused arbitrarily, and for no legal reason.
    Submitted April 11, 1907.
    Appeal, No. 70, Oct., T., 1907, by Black Diamond Distilling Co., from decree of Q. S. Clear-field Co., refusing distiller’s license.
    Before Rige, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Petition for distiller’s license. Before Smith, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order refusing the license.

      A. L. Cole, for appellant.
    — In the case of a retail application, the court may refuse without assigning reasons and even without hearing, because he may have personal knowledge on the question of necessity, and the presumption is that he acted through proper motives. But where no question of necessity arises and no facts are set forth- in the remonstrance which would justify the court to refuse the license, a distiller’s is a license matter of right: Johnson’s License, 156 Pa. 322.

      May 13, 1907 :

      W. O. Pentz and W. L. OalJcins, for appellees. —
    The presumption is that the petitioner for a liquor license was accorded a full hearing and that the refusal of a license was for a legal reason, and where there is nothing on the record to show the contrary, the order of the refusal of a license is not reviewable on appeal: Alfonso’s License, 11 Pa. Superior Ct. 565; Netter’s License, 11 Pa. Superior Ct. 566 ; Hilleman’s License, 11 Pa. Superior Ct. 567; Di Nubile’s License, 11 Pa. Superior Ct. 571; Bischoff’s License, 11 Pa. Superior Ct. 574 ; Kauffmann’s License, 11 Pa. Superior Ct. 574; Binder’s License, 11 Pa. Superior Ct. 575; Meenan’s License, 11 Pa. Superior Ct. 575 ; Sweeney’s License, 11 Pa. Superior Ct. 569 ; Kilgore & Co.’s License, 13 Pa. Superior Ct. 543.
   Per Curiam,

This is an appeal from an order in the following words refusing the appellant’s application for a distiller’s license: “Now, March 1, 1907, after hearing and due consideration, license is refused by the court.” It is well settled by numerous decisions that in refusing an application for a wholesale or a retail liquor license the court need not set forth its reasons ; that if the record be regular and there be nothing to show affirmatively an abuse of discretion the appellate court is bound to presume that the reasons influencing the court to refuse the application were legal reasons ; and that upon such an application the court is not confined to an investigation of the objections stated in the remonstrance. It is true no question of necessity for accommodation of the public arises upon an application for a distiller’s license, and it is contended that if no facts are set forth in the remonstrance which would justify the court in refusing the application, the license is a matter of right. But although the court’s discretion is not so broad in such an application as in an application for a wholesale or a retail liquor license, and the reasons which may influence the discretion of the court are fewer in the former than in the latter cases, yet the same general principle upon which it is presumed an appeal, in the absence of anything to show the contrary, that the license was refused for a legal reason, and not arbitrarily, applies as well in one case as in the other. Johnson’s License, 156 Pa. 322, as distinguished and explained in Gross’s License, 161 Pa. 344, is not authority for holding differently, and in the latter case it was distinctly declared that the presumption in all such cases — where the license was refused after hearing — is, that the judge performed his duty according to law: “ he is not bound to set out legal reasons for his action ; he is only bound to have them.”

The order is affirmed.


text:
    Thompson v. Petriello, Appellant.
    May 13, 1907 :

      Appeals — Assignments of error — Evidence—Certificate.
    Where a paper-book for an appellant does not contain an index with the eyidenee as provided by rule XXIV, and the certificate of the judge required by rule VI, and the record itself shows that the stenographer’s report of the testimony had not attached, thereto the certificate of the trial judge as to its correctness, the appeal will be quashed.
    Argued April 15, 1907.
    Appeal, No. 207, April T., 1907, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1906, No. 213, on verdict for plaintiff in case of Robert W. Thompson v. Robert Petriello.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Assumpsit on a contract. Before Rerpert, P. J.

      Edward Campbell, with him R. P. Kennedy and R. W. Play-ford, for appellant.

      W. J. Sturgis, with him H. A. Cottom, for appellee.
   Per Curiam,

In all cases where an appeal is taken from a judgment on a verdict our rules require the paper-book of the appellant to contain, inter alia, “ an appendix containing the evidence, the pleadings in full and the certificate of the trial judge as hereinbefore provided: ” Rule XXIV. The reference is to the certificate prescribed by rule VI (where there is not a common-law bill of exceptions in the established form) that the notes of testimony, with the exceptions taken by counsel during the trial and the charge, with the exceptions thereto, have been examined and approved by the judge and ordered to be filed. The appellee’s counsel calls attention in his paper-book to the appellant’s omission to comply with these rules, and in the same connection asserts that the appendix in the appellant’s paper-book contains only “ a digest of the testimony, omitting material parts thereof, and giving only the conclusion of appellant’s counsel as to the effect of certain questions and answers, and omits the certificate of the official stenographer and the trial judge.” The appellant’s counsel concede that it is not a literal transcript of the stenographer’s report of the testimony, but assert that although in many instances it is given in narrative form, instead of in the form of questions and answers as reported by the stenographer, the appendix contains the substance' of all of the testimony. There is no reason to believe that- this attempted condensation of the testimony was not made in good faith, but the fact remains, as we have seen, that there is a dispute as to its substantial accuracy in every material particular. There is no mode of deciding such a dispute except by laboriously and in detail comparing the notes of testimony as condensed and printed in the paper-book with the stenographer’s report sent up with the record, and this is a burden which ought not to be put upon the court. These suggestions show the imperative necessity for rule XXIY and for its strict enforcement, unless, in exceptional eases, counsel agree otherwise,, as for example, that only certain parts of the testimony need be printed. The objection in the present case goes not only to the paper-book, but to the record itself. For, upon examination thereof, we find that the stenographer’s report of the testimony has not attached thereto the certificate of the trial judge as to its correctness. This is absolutely essential to make it part of the record, as has been decided in cases too numerous to cite. These defects were called attention to in the appellee’s paper-book in time to have them corrected, and we are constrained to hold that the record is not in such shape, either as returned or as printed, as entitles the appellant to assign for error matters which depend for their correct determination upon the official report of the testimony and of the exceptions taken at the trial.

The appeal is quashed.


author: Orlady, J.,

text:
    Schimmack v. Washington & Cononsburg Railway Company, Appellant.
    May 13, 1907 :

      Negligence — Street railways — Runaway car — Sand apparatus.

    In an action against a street railway company to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where it appears that a car of the defendant escaped the control of the motorman on a steep grade of a borough street, ran by a derailing switch into a side street, struck and injured the plaintiff 150 feet away from the end of the track, and that the sanding apparatus of the car was either out of order, or had not been properly applied.
    Argued. April 15, 1907.
    Appeal, No. 161, April T., 1907, by defendant, from judgment of C. P. Washington Co., May T., 1906, No. 30, on verdict for plaintiff in case of Frank Schimmack v. Washington & Cononsburg Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed..
    Trespass to recover damages for personal injuries. Before McIlvaine, P. J. y
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,350. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John E. Murdoch, of John H. Murdoch £ Son, for appellant.

      H. L. Williams, of McIlvaine Williams, for appellee.
   Opinion by

Orlady, J.,

The appellant operates an electric street railway in the borough of Washington; on its line on Main street, from near the court house to the intersection with Maiden street, there is an eight to nine per cent grade. Formerly the tracks continued below Maiden street, but, for some undisclosed reason, that part of the track has been abandoned, but an intersecting switch at that junction has been retained in place to connect with its track on Maiden street, which crosses Main street at right angles. On the morning of November 21, 1905, car No. 54 of the appellant, in charge of its crew started down the grade on Main street, and was soon beyond the control of the motorman, so that it passed through the intersecting switch at the corner of Main and Maiden streets’, and proceeded on down Main street on the brick paving, and after going from 100 to 150 feet beyond the switch, it collided with the plaintiff who was seated in a bakery wagon drawn by one horse, and then continued in its course a distance of about fifty feet further, in which course it broke down two telephone poles and jammed against the curb of the street. The defense interposed was, that the car was fully equipped with the latest and best appliances, which were properly used to safeguard its passage on the descent, but that owing to an unusual and slippery condition of the rails they were ineffective. The motorman testified that he applied the magnetic brake, as well as the hand brake, and used the sand apparatus, but all to no avail. The case was submitted to the jury and resulted in a verdict for the plaintiff, from which the defendant appeals.

An analysis of the testimony demonstrates that the submission was proper. While it was shown that the car was equipped with the latest and best electrical appliances in use, and that after the accident these were found to be intact, it was just as clearly shown that the sanding apparatus was either out of order, or that it was not properly applied on this occasion. Two witnesses testified that while the sand was freely used on the descending grade, it was deposited in a direct line, from four to six inches on the inside of the rail, and not on the rail at all. The tracks were examined by a number of persons who were disinterested, and the attention of the witnesses on the ground was called to this condition, immediately after the car passed. The conditions were not unusual or extraordinary, inasmuch as it was shown that a car had safely passed over the same tracks twelve minutes preceding this one, and one followed it twelve minutes afterward, each being similarly equipped to car No. 54. The purpose of the derailing switch as stated by defendant in its offer, was that it was maintained, “ so that in the event of a car getting away from the control of the motorman and running off, to permit the car to run beyond Maiden street corner and on to the brick pavement; and if the derailing switch were not there, and a runaway car should strike the curve at Maiden and Main streets without the derailing switch, the car would inevitably be overturned, and passengers or others injured who were properly on the car. This offer was made good by the superintendent who testified, that primarily it was there for the sole purpose of protecting the rolling stock of the defendant company and passengers that they may be carrying, and for whom they might be liable in case of an accident. No precaution was taken by the railway company to protect persons lawfully using the public highway beyond the derailing switch, and this plaintiff while lawfully occupying this public highway, was run over by the defendant’s car when it was at least 150 feet away from where it had any lawful right to be. The question of .the defendant’s negligence in operating the car by the motorman not using the appliances under his control at the proper time so as to be effective, was fairly left to the jury, and no other disposition of the case would have been proper under the circumstances.

Negligence is the absence of care according to the circumstances, and is always a question for the jury, when there is a reasonable doubt as to the facts, or as to the inferences to be drawn from them ; and when the facts are either admitted or established by indisputable evidence, it is the duty of the court to declare the law applicable to them; but when matei'ial facts are disputed, or inferences of facts are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are. This has been so frequently decided that it is a controlling rule in all such cases : Wilson v. Penna. Railroad Company, 177 Pa. 503. We do not understand Small v. Pittsburg Railways Company, 216 Pa. 584, to in any way change this rule which has been so frequently announced, and we feel that that case was decided upon its own particular circumstances. The facts stated in the opinion of the court being considered the only ones that the jury should have found under the circumstances, and for the reasons therein given the judgment in that case was special to its own facts. However, the facts in this case are materially different, and could not be disposed of as matter of law.

The assignments of error are overruled and the judgment is affirmed.