text:
    Hedderson, Appellant, v. Hedderson.

      Divorce — Desertion—Malice—Presumption—Evidence,
    A desertion without consent and without sufficient legal cause is presumed to be willful and malicious, and when a wife so leaves her husband, and for a period of two years refuses to return, she is guilty of such desertion as will entitle him to a divorce.
    On the trial of a libel for divorce by a husband on the ground of desertion, the husband is a competent witness, and his testimony is to be received, and is sufficient to establish the facts contained therein when not in themselves contradictory, or contradicted by other testimony.
    Where the husband’s testimony as to desertion is supported by that of a disinterested witness, the master is not justified in treating the husband’s testimony with suspicion and refusing a divorce merely because the husband had previously failed in a similar proceeding, the record of which is not in evidence, and because the desertion had been preceded by a quarrel over a boarder.
    The conclusive character of a report of a master and the confirmation thereof by the court does not prevail in divorce cases.
    Argued Dec. 10, 1907.
    Appeal, No. 201, Oct. T., 1907, by plaintiff, from decree of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 239, dismissing exceptions to master’s report in case of George Hedderson v. Jane Hedderson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      February 28, 1908:
    Libel for divorce.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree dismissing exceptions to master's report.

      F. F. Brightly, for appellant..
    — There is no evidence whatever of any collusion between the parties. The libelant testified that she left him and moved out of his house without his consent and that he tried to prevent her from going, and that the trouble was over her keeping a boarder whom he objected to having in the house. This testimony was uncontradicted. The divorce should have been granted: Baker v. Baker, 195 Pa. 407; Whelan v. Whelan, 183 Pa. 293; Faunce v. Faunce, 20 Pa. Superior Ct. 220; Krug v. Krug, 22 Pa. Superior Ct. 572.
    A mere suspicion of collusion is insufficient to prevent the granting of a decree: Wilhelmi v. Wilhelmi, 9 Pa. Dist. Rep. 685.
    It is further respectfully submitted that the learned court committed a serious error in dismissing the libel without filing an opinion: Howe v. Howe, 16 Pa. Superior Ct. 193.
    No paper-book for appellee.
   Opinion by

Beaver, J.,

After finding that the libelant and respondent resided in Philadelphia from 1870, that they are now citizens of this commonwealth and were so for a period of more than one year prior to the filing of the libel in this case, the master finds: “That, on December 9, 1901, after a quarrel over a boarder, the respondent left the libelant. Five moving wagons drew up to the door of the libelant’s residence, 2025 Montgomery avenue, and took all the furniture away, except the contents of one room. The respondent moved to Twenty-fifth and Nicholas streets, where she rented a house and took in boarders. Libel-ant further testified that the going away of his wife was against his consent, that he tried to stop her and that she ordered the wagons herself. Libelant further stated that he had given no cause for his wife’s departure and that he was always kind and good to her. • A Mrs. Sarah Thompson corroborated the libel-ant’s testimony about the respondent leaving and also said that the libelant treated his wife 'fine’ and was 'very good to his children.’ ” A careful examination of all the testimony in the case shows that these findings are fully justified.

“The mere fact that parties are living apart does not raise a presumption of desertion. Desertion begins with the intent to desert, and to make such desertion permanent. Willful desertion signifies intentional desertion. It does not imply malice in fact:” Browne on Divorce, 144.

In McClurg’s Appeal, 66 Pa. 366, it is said: “The desertion and its continuance are clearly proved and, so far as we can discover, was without sufficient legal reasonable cause for it; while on the contrary he appears to have been actuated by perverse feelings, leaving the conclusion that his absence was willful, and, in legal acceptation, malicious.”

It here appears that it is not necessary to prove actual malice; indeed the cases are rare in which this can be done. If the desertion is intentional, it is willful. If willful, malicious. This is the current of all our authorities.

Van Dyke v. Van Dyke, 135 Pa. 459: “A desertion, which is without consent and without sufficient legal cause, is presumed to be willful and malicious; and, if persisted in for two years or more, it will entitle the injured party to a decree of divorce.”

Whelan v. Whelan, 183 Pa. 293: “A desertion without consent and without sufficient legal cause is presumed to be willful and malicious, and when a wife so leaves her husband, and for a period of two years refuses to return, she is guilty of such desertion as will entitle him to a divorce.”

Middleton v. Middleton, 187 Pa. 612: “Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested when without cause or consent either party withdraws from the residence of the other.”

There is no departure, and no intention to depart, from the settled principles of those well-considered eases in the later ones in this court, as the master seems to think.

“ The finding of the master, based upon competent evidence, is that the wife deserted the husband in this case, without legal cause, against his consent and in spite of his efforts to prevent it. She has persisted in such desertion from that day to the day of the hearing, a period of more than five years.

“ The husband being a competent witness, his testimony is to be received and is sufficient to establish the facts contained therein when not in themselves contradictory or contradicted by other testimony:” Baker v. Baker, 195 Pa. 407; Faunce v. Faunce, 20 Pa. Superior Ct. 220.

In this case, however, the husband's testimony is supported by that of a disinterested witness who was a near neighbor. The grounds upon which the master apparently assumes to conjure up doubts in his own mind are stated by him as follows: “From the outset your master has been disposed to view the testimony in this case with great caution. The libelant is not unknown to this court, having filed a libel in divorce on a previous occasion on practically the same grounds. The case is of March Term, 1905, 0. P., No. 5, No. 225, and, on recommendation of William B. Davis, Esq., master, the libel was dismissed and the prayer thereof refused.” The grounds upon which the previous libel was dismissed are not stated and, inasmuch as the present case was heard in May, 1907, it would appear as though sufficient time had elapsed to entitle the libelant to a divorce by the continued desertion of the wife, if the original desertion had been of the character clearly shown by the facts, as'developed in the testimony. Even if the fact stated by the master, therefore, is true, it is not of itself sufficient to controvert the clear, explicit and unequivocal testimony in the case. It is to be remarked further that the alleged facts upon which the master based his suspicion and “disposed” him “to view the testimony in this case with great caution” were not in evidence, and how he could reach a disposition from the outset to view the case with caution, upon a fact not in evidence and entirely outside of the case, is a mystery to us.

It was said in Olson v. Olson, 27 Pa. Superior Ct. 128: “Uncontradicted testimony máy not be rejected capriciously in a divorce case any more than in other cases: Shoemaker v. Shoemaker, 25 Pa. Superior Ct. 183. But the courts are not bound to accept as absolute verity the testimony of a libelant that the libelee willfully and maliciously deserted him, such testimony being given in answer to leading questions- and without being subjected to the test of cross-examination, where, in addition to its inherent weakness or improbability, a natural inference may be drawn from his conduct that is wholly inconsistent with it.” In this case the respondent was represented by counsel, although she presented no testimony. There was, therefore, opportunity for cross-examination and, so far as we can judge from an examination of the testimony of the libelant and the witness who corroborated him, there is nothing in the testimony which is inherently weak or improbable, nor is there any natural inference to be drawn from his conduct which is wholly inconsistent with the facts, as testified to by him.

The master further says in his report: "Analysis of the testimony adduced shows that the respondent left after a quarrel with the libelant over a boarder. The merits of the matrimonial controversy are not gone into, and it is not beyond the bounds of possibility, nor even probability, that the wife was right, and was justified in leaving when and how she did. The presumption of legal willfulness and malice does not of necessity attend her act in this case. The libelant, too, seems to have viewed the departure of the respondent with a passive forbearance.”

This finding is, in our opinion, entirely unjustified by the facts. In justification of it, the master quotes some of the testimony - of the libelant, stopping at the point where, if he had continued his question, his suspicions and inferences would have been fully rebutted, if rebuttal were needed or required, by the testimony. At the point at which the master ceases to quote the testimony, this is stated:

“Q. Did you quarrel? A. Yes,- the quarrel was over a boarder. I objected to him being with us, and this is what caused the trouble. She would not get rid of .the boarder when I requested her to do it, but said she would go herself before she would tell him to go. Then she moved away.on December 9, with the boarder, taking all the furniture with her, except the contents of one little room. Q. Where did she go? A. She rented a house at Twenty-fifth and Nicholas streets and took in boarders. Q. Did she go with your consent? A. No, I tried my best to stop her, but she would not listen to me. Q. Did you give her any cause to leave? A. No, only my objections to the boarder,” etc'. It is not pretended that the objection of the husband to the boarder was any justification whatever for the desertion by the wife, and how the master could construe the husband’s conduct as “passive forbearance,” under the circumstances, we cannot understand.

The report closes with a recommendation that the libel should be dismissed.

Exceptions were filed to the master’s report which were dismissed by the court below and a decree made: “And now, October 23, 1907, the master’s report in this case having been filed, recommending a dismissal of the libel, and the libelant’s exceptions to said report having been dismissed, it is ordered and decreed that the libel in this case be dismissed.”

No opinion is filed and nothing to show that the testimony, upon which the master’s recommendation was based, was examined.

This unsatisfactory manner of disposing of an application for divorce has been commented upon so often that we forbear to emphasize what we regard as a very serious omission. If it affirmatively appeared that, upon a careful examination of the testimony, the recommendation of the master had been adopted by the court, _ because of the unsatisfactory character of the testimony, we would be disposed to give the conclusion reached by the court very careful consideration, but, as has been stated in Edgar v. Edgar, 23 Pa. Superior Ct. 220, and Reed v. Reed, 30 Pa. Superior Ct. 229, the rule in regard to the conclusive character of a report of an auditor and the confirmation thereof by the court does not prevail in divorce cases. In the latter ease, our Brother Orlady in his opinion, says: “It was held in Middleton v. Middleton, 187 Pa. 612, that in cases like the present one it is incumbent on the Supreme Court, and now on this court, except where there has been an issue and a jury trial, to review the testimony and adjudge whether it sustained the complaint of the libelant, and that the rule generally applicable tó proceedings before the master or an auditor, that a finding of fact will not be disturbed except for manifest error, is not applicable. In every case in which the appeal is from a decree not based on the findings of a jury from testimony produced and the finding had in open court, under the instructions of the judge as to the law, the court is to take up, analyze and review the testimony. Therefore, of whatever drudgery the court of original jurisdiction may relieve itself in this class of cases by the appointment of an examiner, neither it nor we can escape the burden of a careful consideration of the evidence to ascertain if it does in very truth establish the statutory grounds of divorce.”

Satisfied, from our examination of the evidence, that the uncontradicted testimony of the libelant, supported by that of a disinterested witness, clearly establishes the statutory grounds upon which a divorce for desertion is allowed, we are compelled to reach a conclusion differing from that of the master and the court below.

The decree, dismissing the libel, is reversed and a decree of divorce a vinculo matrimonii, with costs, is now entered in favor of the libelant.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Martin v. Stong.

      Replevin — Title to personal property — Estoppel—Appeals.
    Where, in an action of replevin the plaintiff's title is undisputed, and no question of estoppel is raised at the trial, the defendant cannot, on an appeal, raise such a question in the appellate court.
    The real owner of a chattel cannot be charged with an estoppel by a purchaser of the chattel, where it does not appear that the purchaser acted on,-or was misled by anything said or omitted to be said by the owner or his agent.

      February 28, 1908:
    Argued Dec. 11, 1907.
    Appeal, No. 170, Oet. T., 1907, by Richard Zirkman and Charles Kurtzhals, from judgment of C. P. Chester Co., April T., 1906, No. 49, on verdict for plaintiff in case of Alexander Martin v. John Stong, Beech Stong, Richard Zirkman and Charles Kurtzhals.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin to recover a mare. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $89.67.

      Error assigned was in giving binding instructions for plaintiff.

      W. 8. Harris, for appellants.

      A. M. Holding, for appellee.
   Opinion by

Morrison, J.,

In this action of replevin the title and right of possession of a certain mare were involved. The evidence clearly establishes that the plaintiff was the owner of the mare for many years, and that on March 27, 1905, he delivered possession of her to James Torrence, under a written bailment. Under certain contingencies, specified in the bailment, Torrence was to return the mare to the plaintiff. Instead of doing this Torrence fraudulently disposed of the mare and left the country. The evidence clearly establishes the fact that the defendants had no title to the mare, and no right to retain possession of her, unless the plaintiff was estopped from asserting his title and right of possession. This is conceded and the learned counsel for the defendants bases his right to a reversal of the judgment on estoppel.

We have carefully examined the record and find that no such question was raised at the trial; no points or requests for instructions were presented to the court, and at the close of the trial counsel for defendants excepted, only, to that part of the charge wherein the court said to the jury, “that as we interpret the contract offered in evidence, as matter of law, we hold that the plaintiff has title to the mare and is entitled to recover,” and a bill of exceptions was sealed. • This excerpt from the charge must be considered in connection with the whole of the charge, because the court based this instruction on findings of fact to be found by the jury.

We think it would be manifestly unfair to reverse the judgment on the ground that the plaintiff was estopped because that ■ question was not raised till after trial and verdict, and it is apparent that it was an afterthought of the learned counsel when he was searching for some ground for reversal of the judgment. But we will examine the question of estoppel as if it had been properly raised.

The plaintiff authorized his son, Stuart T. Martin, to find the mare, if he could, and identify her, and gave him no other authority. The young man found the mare in the possession of Beech Stong, at the barn of his father, John Stong. The complaint is that the young man did not tell Beech Stong that the mare was owned by his father, at that time. Beech Stong testified: “Q. What did Mr. Martin ask you? A. He asked me if we did not have a mare there that we got off of Keenan. I told him I had. He asked me 'could he see her. I told him he could. I took him in the stable and backed her out and showed her to him. He looked the horse over and says: 'My, she looks good.’ He petted her, and talked to the mare a little bit, and turned around and told me: 'If you dispose of this mare, would you let me know where she goes? ’ ” Beech Stong also testified that he had bought the mare and had kept her at his father’s barn and had authorized his father to sell her. Evidently the authority to sell was granted before he saw young Martin. Beech further testified: “Q. You had bought her? A. I had bought her, yes, sir. Q. Did you have any question about your authority to sell her at any time? A. No. Q. Then, what this young man said to you had nothing to do with your selling her? A. No, not at all. Q. Did not mislead you? A. No, not at all.” Beech Stong did say, in answer to a leading question by his counsel, that if the young man had told him he owned the mare he would not have sold her, but in the same breath he said the mare was dealt for before the young man came there, before we knew anything of Mr. Martin at all. “By the Court: Q. You had made arrangements to sell to Zirkman before that? A. I authorized my father. Q. The arrangement to make the sale that subsequently was made was entered into before you saw this young man? A. It was made, and the deposit was on the mare, and waiting for the balance.” Now, John Stong testified that he had sold the mare for his son three or four weeks before young Martin came to see her, and she was being held until the purchasers got the money to pay for her.

Under the above facts, it seems idle to talk about the plaintiff being estopped, for several reasons. The main one is, however, sufficient. There is no evidence in the record that any of the defendants acted on and was misled by anything said or omitted to be said by young Martin. Moreover, the latter had no authority to say anything, except to identify the mare. The evidence raises no question of estoppel, either in fact or in law: Patterson v. Lytle, 11 Pa. 53; Diller v. Brubaker, 52 Pa. 498; Helser v. McGrath, 52 Pa. 531; Brubaker v. Okeson, 36 Pa. 519.

We have carefully examined the cases cited and relied on by counsel for defendants, to convict the court of error in not ruling the case on estoppel, but they do not avail because on the facts the defendants had no case. The evidence strongly established the plaintiff’s right to the mare, and the jury found, under proper instructions, all of the essential facts necessary to entitle the plaintiff to recover. The verdict, in amount, is sustained by the evidence.

The assignment of error is dismissed and the judgment is affirmed.


author: Henderson, J.,

text:
    Guillou v. Campbell, Appellant.

      Replevin — Title to personal property — Estoppel—Abandonment.
    Where a daughter upon, her marriage and departure for a residence in a distant state, leaves in her father’s house an article of furniture, she cannot be divested of her title to such article by the mere fact that she left the article in the house for many years until the death of her father, and for five years after his death, when it was sold by her father’s executor, if it appears that the owner gave the purchasers of the article at the sale no reason to believe that the property belonged to the executor, or that the latter had any express or implied authority to sell it or that she ever intended to abandon ownership of it.
    Argued Dec. 9, 1907.
    Appeal, No. 65, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 3,811, on verdict for plaintiff in case of Emma B. Guillou v. Charles S. Campbell, Mary B. Campbell, intervening.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver,‘JJ.
    Affirmed.
    Replevin to recover a child’s bureau. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were various excerpts from the charge and the refusal of binding instructions for defendant.

      James F. Campbell, for appellant.
    — A person who invests another with the apparent ownership and control of property may be estopped from setting up title against one who has been misled by such action: Wood’s App., 92 Pa. 379; O’Connor v. Clark, 170 Pa. 318; Miller v. Browarskey, 130 Pa. 372; Ackla v. Ackla, 6 Pa. 228; Vanderslice v. Ins. Co., 13 Pa. Superior Ct. 455; Moore v. Bank, 55 N. Y. 41; McNeil v. Bank, 46 N. Y. 325; Garrard v. Haddan, 67 Pa. 82; Simpson v. Bovard, 74 Pa. 351; Zimmerman v. Rote, 75 Pa. 188; Brown v. Reed, 79 Pa. 370; Stephens v. Gifford, 137 Pa. 219; Shaw v. Levy, 17 S. &R. 99; Davis v. Bigler, 62 Pa. 242.

      February 28, 1908:
    /. Hazelton Mirkil, for appellee.
    — No title passed to the defendant: McMahon v. Sloan, 12 Pa. 229; Quinn v. Davis, 78 Pa. 15.
   Opinion by

Henderson, J.,

It is the law of this state that the title of chattels only passes from the owner by his voluntary act or by operation-of law. Possession merely, without title, does not give property, and the holder cannot transfer a better title than he has, himself. There is an exception, to be sure, to the general rule, applicable to checks, promissory notes, bank bills and other money as to which the necessities of commerce give such a property to the holder that he may transfer a good title. They pass by delivery, because without this quality their usefulness would cease to a large extent and the current of trade be much obstructed. Another exception exists where the owner voluntarily confers upon another an apparent right of property, either as owner or agent for sale. In the latter class of cases the question is generally not one of title, but of the right of recovery, the equitable doctrine of estoppel frequently arising to prevent the owner from asserting an unquestioned title against a good faith purchaser. Illustrations of this are found in the case of one who gives to another such evidence of the right of disposition as usually goes with such authority according to the usages of trade or the general understanding; or where one holds out another as having authority to sell his -goods, in which cases the law will not permit the real owner to recover from one who in good faith purchased the property relying on the appearance of a right to sell on the part of the holder, arising from the voluntary conduct of the owner. What, then, is the application of this principle to the question before us? That the plaintiff was the owner of the property up to the time it was sold at auction is not questioned. The uncontradicted evidence is that it was given to her many years before by her mother; that when she was married and went to the west she left it with other articles of personal property with her father in his home in Germantown; that it remained there until her father’s death in 1898 and for five years longer while the plaintiff’s sister lived in the homestead. In December, 1903, a trust company — the executor of the will'of the plaintiff’s father — caused the household goods of the decedent to be removed to an auction room, where they were advertised to be sold at public sale. The plaintiff’s bureau was removed with this property, presumably, because the executor or its agent supposed that it was part of the decedent’s estate. The plaintiff did not know that the property was removed or sold until a considerable time after the sale. The executor was not her agent or bailee, and had not received any custody of, or control over, the property from her, nor is there anything to show that it ever intended to exercise such control. The removal of it was plainly a mistake. It is not shown who became entitled to the homestead on the death of the plaintiff’s father, but the fact that a sister remained on thé premises until shortly before the auction sale, gives us leave to presume that she was rightfully there and the plaintiff’s right to keep her goods in the dwelling has not been challenged. The only property with which the executor had anything lawfully to do was that belonging to the decedent’s estate. We have not the case of a person who invests one with the apparent ownership and control of property by which another was misled to his prejudice. There is an entire absence of evidence of any act done by the plaintiff which led the defendants to suppose that this property belonged to the estate or that the executor was authorized to sell it. The storage of it in the homestead did not afford any facility for fraud which would not exist in any case of bailment. If every owner of chattels may be met by an estoppel where his property is in a situation which enables a stranger to take possession of it without right and expose it for sale, we shall have a state of the law which will be destructive of many useful methods of business and of valuable property rights. The taking of the bureau by the executor, without the knowledge .or consent of the owner, did not give an appearance of title to the executor. Nor is,the plaintiff to be charged with the consequences of silence or negligence in not acting to prevent the sale. The silence or negligence for which one may be held responsible is that exhibited at a time when it is one’s duty to speak or act; but no such duty existed here, for the plaintiff was not bound to presume that her property would be taken or sold. There is not the slightest evidence that the plaintiff gave the defendants any reason to believe that the property belonged to the executor, or that she had given the latter any express or implied authority to make the sale. Nor is there any evidence of what the learned counsel for the appellants calls “abandonment.” It appears from the evidence that the plaintiff left her goods at her old home because she had no place to which to take them when she went to California, but she is not to lose her property because she does not keep it in her immediate custody. Mere lapse of time does not destroy her right, and even if this were an important fact the defendants were not aware of it and did not buy in view of it.

• The charge of the court does indicate a sympathy with the ■plaintiff, but that was not prejudicial to the defendants'for there was no evidence in the case on which a verdict in their favor could have been properly rendered. In submitting to the jury the question whether the plaintiff fraudulently held out the executor as the owner of the property or whether she ■acted in a way which was careless, negligent or fraudulent in leaving her property in the homestead, the court was more favorable to the defendants than the evidence required. No title was shown by the defendants and the court properly denied their request for binding instructions.

The assignments are overruled and the judgment affirmed.


text:
    Keely, Appellant, v. Jones.

      Mechanic’s lien — Notice as to filing lien — Subcontractor—Act of June 4, 1901, P. L. 431, sec. 8.
    The provision of sec. 8 of the Act of June 4,1901, P. L. 431, requiring a subcontractor to give to an owner thirty days’ notice of his intention to file a mechanic’s lien, is imperative, and if no such notice is given the lien is invalid.

      Argued Dec. 4, 1907.
    Appeal, No. 95, Oct. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 6, for defendant on the whole record in case of Elizabeth H. Keely, Administratrix of the Estate of Jesse Roberts, deceased, v. Lena D. Jones, owner or reputed owner, and Bernard Dobbins and George F. Dobbins, trading as Dobbins Brothers, Contractors, and Lena D. Jones.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Swartz, P. J.
    The opinion of the Superior Court states the case.
    The court entered judgment for defendant on the whole record.

      Error assigned was the judgment of the court.

      Alex. Simpson, Jr., with him Frederick A. Sobernheimer and Montgomery Evans, for appellant.
    — It is not provided in sec. 8 of the act of 1901, nor in any other section, that if the claim is filed too early it is fatal to the validity of the claim. When the legislature intended anything so drastic as that it said so in unmistakable terms. Thus in sec. 21 it is said that unless within one month of the filing of the claim, notice is given of the filing, and an affidavit as to the manner of service of such notice is filed of record, the claim may be stricken off. Claimant complied with that section in the present case. Section 8 does not provide a penalty, while sec. 21 does. This shows that the only penalty which should be imposed when a claim is filed too early, would be the loss of unnecessary costs incurred by reason thereof. Even under sec. 21, it has been held that the court has a discretion when it does not appear that there is a defense upon the merits: Gerrard, Gibson & Co. v. Ecker, 12 Pa. Dist. Rep. 332.
    It is not to be lost sight of that a too strict construction of the mechanic’s lien law is not permissible: Knabb’s Appeal, 10 Pa. 186; American Car, etc., Co. v. Alexander Water Co., 215 Pa. 520; Smith v. Snyder, 168 Pa. 541; Phila. to use v. Meighan, 159 Pa. 495; Pittsburg v. Fay, 8 Pa. Superior Ct. 269.
    February 28, 1908:

      John- Stokes Adams, with him Samuel H. High and John Faber Miller, for appellee.
    — A mechanic’s lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity: Wharton ct al.v. Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581; Wolf Co. v. Penna. R. It. Co., 29 Pa. Superior Ct. 439.
    That the requirements as to notice contained in sec. 8 are mandatory has also been held in the common pleas courts of Franklin county and of Center county, as well as of Montgomery county: Stover v. Foltz, 13 Pa. Dist. Rep. 636; Crider v. McCafferty, 13 Pa. Dist. Rep. 638.
   Opinion by

Henderson, J.,

The appellant is the representative of a subcontractor who filed a lien against the appellee. Judgment was entered in favor of the owner on the whole record. The defense set up was that notice of an intention to file the lien was not served on the owner at least one month before the claim was filed, and the case turns on the question whether a lien filed less than thirty days after notice may be enforced. The eighth section of the Act of June 4, 1901, P. L. 431, provides that “Any subcontractor, intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or materials furnished.” It is further provided that this notice and statement must be served at least one month before the claim is filed. It has been repeatedly said that a mechanic’s lien is a pure creature of the statute, and that compliance with statutory requirements is necessary to its validity: Wharton v. Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581. The preference given to a mechanic or material man to secure his debt by lien is a privilege which only exists by legislative permission, and compliance with the statutory requirement must be observed by him who would have the advantage which the law gives him. The language of the act is imperative that this notice be given. We have nothing to do with the wisdom of the requirement, nor can we say that the doctrine of substantial performance applies. When the act fixes a date at which, or within which, something is to be done in order to establish a valid claim, substantial conformity will not answer. There must be compliance with the requirement: Guarantee B. & L. Assn. v. Connor, 216 Pa. 543. When a time is fixed within which the lien must be filed it will not do to say a claim entered one day or one month thereafter is in practical conformity to the law and does the owner no harm. If we say that a lien may be entered with less than thirty days’ notice, why may we not with equal propriety hold that no notice is necessary? The provision for notice is important to the owner. He is given an opportunity to avoid the cost, annoyance and inconvenience of a lien by adopting such measure as may be available for that purpose. When the lien is effectively filed the property is chargeable with the costs of the proceeding. If a valid lien may be filed before the owner has had thirty days’ warning it would seem to be a necessary consequence that the costs must follow the lien. It cannot be logically said that a material man has a right to the lien and to its enforcement and may still be deprived of his costs. When the act says that a notice must be given thirty days before the lien is filed, that is equivalent to the declaration that a valid lien cannot exist unless notice was given at least thirty days prior to its entry. Such notice is a condition precedent. The words of the act are “must be served.” No more imperative lanugage could be used and we are not at liberty to weaken its plain significance by construction. Of language so plain there is no room for interpretation. We held in Wolf Co. v. Penna. R. R. Co., 29 Pa. Superior Ct. 439, that the provisions of this section with reference to notice are mandatory and that compliance with them is a condition precedent to the right to file a lien; that this provision of the statute is an essential requirement and failure to comply with it is fatal to the validity of the claim. The late case of Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581, is to the same effect.

There is nothing in the case on which the defendant could be held to have waived her right to notice. After the lien was filed and she was notified of that fact, she promptly filed an affidavit of defense in winch she set up the defense now relied on. She was not called upon to act until the plaintiff proceeded to collect the claim. The plaintiff was not misled by any act of the defendant nor was the latter silent when she was called upon to speak.

The judgment is affirmed.

Rice, P. J., dissents.


author: Beaver, J.,

text:
    Roscoe v. Browne.

      Practice, C. P. — Parties—Service—Appearance.

      An action of assumpsit was brought against four several defendants. Service was accepted on behalf of two of them by an attorney with directions to the prothonotary to enter an appearance for the two defendants named. Subsequently the same attorney filed an affidavit of defense and thereafter a plea, on behalf of “the defendants” without naming any of them, and under captions which included the names of all four defendants. Subsequently the case was called for trial, and the minutes showed that the attorney in question and another attorney appeared for the defendants, without naming them. At this trial and at two subsequent trials, juries were sworn as to all the defendants without an objection having been raised. In other proceedings taken in the cause no distinction was made amongst the several defendants. The record showed that no return was made by the sheriff on the writ. At the third trial the parties not served testified as witnesses. Held, that there was no error in entering judgment against all the defendants upon a verdict rendered against them at the third trial.
    Argued Dec. 12, 1907.
    Appeal, No. 202, Oct. T., 1907, by Samuel C. Browne and William Anderson, Jr., from judgment of C. P. No. 3, Phila. Co., Dec. T., 1902, No. 448, on verdict for plaintiffs in case of James Roscoe and Samuel Bishop, trading as Roscoe & Bishop, v. William Browne, Samuel C. Browne, Bernard S. Browne and William Anderson, Jr., copartners, late trading as The Phcenix Mills Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiffs for $776.74. William Browne and Samuel C. Browne appealed.

      Error assigned was in entering judgment on the verdict against all of the defendants.

      M. J. O’Callaghan, with him Edward P. Bliss, for appellants.
    — It is of course perfectly clear that no valid judgment can be entered against a defendant who has not been served with process and who has not voluntarily appeared: Jamie-son v. Pomeroy, 9 Pa. 230; Erdman v. Stahlnecker, 12 S. & R. 325; Herschberger v. Brown, 2 Woodward, 101.
    The mere presence of a party in court during the trial will not of itself constitute an appearance to the action: Building Society v. Holt, 184 Pa. 572; Merkee v. Rochester, 13 Hun (N. Y.), 157; Newlove v. Woodward, 9 Neb. 502; Miller's Est., 159 Pa. 562.
    Appearing to testify as a witness is not an appearance to the action: Nixon v. Downey & Wolverton, 42 Iowa, 78; Anderson v. Anderson, 55 Mo. App. 268; Scott v. Hull, 14 Ind. 136; Bank v. Rowley, 89 N. W. Repr. 765.
    A fortiori, making an affidavit in a purely collateral matter, not affecting the merits, such as an affidavit to the presence of witnesses, should not be construed to be an appearance to the action: Hendrick v. Kellogg, 3 Greene (la.), 215.
    Where counsel appears expressly for certain defendants his signature to papers in the case after that time as attorney for the defendants will be construed as limited to those defendants for whom he specifically appeared: Spangel v. Dellinger, 42 Cal. 148; Hobbs v. Duff, 43 Cal. 485.

      February 28, 1908:
    Where pleas are filed purporting to be filed by the defendants generally this will not be an appearance for those not served: Crump v. Bennett, 2 Litt. (Ky.) 209; Kimmel v. Kimmel, 5 S. & R. 294.
    In all the Pennsylvania cases in which it has been held that the acts of the defendants have construed a general appearance, the record itself has shown, either the entry of bail, or the filing of an affidavit of defense, plea, answer or other paper, or the making of some application, affecting the merits: MacGeorge v. Chemical Mfg. Co., 141 Pa. 575; Southern Bldg. & Loan Assn. v.Fire Ins. Co., 23'Pa. Superior Ct. 88; Jeannette Boro. v. Roehme, 197 Pa. 230; Taylor v. McCafferty, 27 Pa. Superior Ct. 122; Daley v. Iselin, 212 Pa. 279.
    If, however, it be admitted for the purposes of this argument that the defendants, William Anderson, Jr., and Samuel C. Browne, by their appearance in court and their testimony as witnesses, are to be construed as appearing and submitting themselves to the jurisdiction of the court, the case falls within the ruling in Donnelly v. Graham, 77 Pa. 274, and the judgment is bad.

      Wm. A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellees,
    cited: Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33.
   Opinion by

Beaver, J.,

If the statement of the question involved contained all the facts and circumstances essential to the understanding of this case, it could be disposed of without difficulty under Miller’s Estate, 159 Pa. 562. The second paragraph of that statement presents the case as argued and relied upon by the appellants: Where two of four defendants have not been served and have not appeared nor pleaded nor taken any part in the cause except to appear as witnesses, can a judgment be properly entered against all the defendants upon a verdict in favor of plaintiffs?” In support of the negative of the contention raised by this statement, counsel for the appellants quote from the opinion of Mr. Justice Williams in Miller’s Estate, 159 Pa. 562, the entire pertinent sentences being as follows: “There are some cases in which actual knowledge of the pendency of an action at law, or the existence of an incumbrance, or the like, may take the place of legal notice; but I know of no case where one who has been examined as a witness is, by reason of that fact alone, concluded by the judgment or decree rendered in the case. There must be other circumstances shown connecting him directly with the litigation, as in fact a party to it, before he can be held bound by the result.”

No opinion was filed in the court below and we are left, therefore, largely to conjecture as to the reasons which influenced it in holding the appellants liable. The action is against four several defendants. There appears upon the writ an acceptance of service on behalf of William Browne and Bernard S. Browne by Edward P. Bliss, directing the prothonotary to enter an appearance for the said defendants, naming them. There is no return by the sheriff upon the writ.

In response to the statement of claim, an affidavit of defense was made by William Browne, one of the defendants, for whom the appearance was entered, in which it is stated “that the said defendants (all of them being mentioned in the caption) have.a just and true defense to the whole of the plaintiffs’ claim.”

In response to a rule to plead within fifteen days, which was filed December 2, 1902, a plea in the caption of which all the defendants are named was filed by Edward P. Bliss, attorney for defendants, stating that: “The defendants in the above entitled cause plead non assumpsit payment, payment with leave, etc.,” together with a special plea set forth at length. This was filed January 7, 1903.

On October 18,1904, the case was called for trial. It appears by the minutes that Messrs. O’Callaghan & Bliss appeared for the defendants. The jury was sworn without objection as to all of the defendants named. It is not specifically stated for whom Mr. O’Callaghan appeared, nor that his appearance was in any sense special. On October 19, a bill of costs was filed on the part of the defendants, in the caption of which all are named, and in the affidavit accompanying which, made by Mr. Bliss, he states: “That he is attorney of record for the above named defendants,” etc. October 21, 1904, a motion for a new trial was filed in the caption of which all the defendants are named, which is signed E. P. Bliss, M. J. O’Callaghan, attorneys for defendants. October 31, 1904, the rule for a new trial was made absolute.

On October 12, 1906, the case having been continued, William Anderson, Jr., one of the appellants, made affidavit to, a bill of costs, in which he describes himself as “ one of the above defendants” and makes affidavit as to the presence and materiality of the witness.

On March 15, 1907, the case was again tried, the jury was sworn, as is not denied by the appellants, as to all the defendants. It appears from the record that no one represented the defendants at this trial and, on the same day, Edward P. Bliss presented a petition and motion for a new trial, in which he describes himself as “ the attorney for the defendants in above entitled suit.”

The rule granted upon this motion was made absolute and, on October 10, 1907, the case was again tried, Messrs. Bliss & O’Callaghan appearing for defendants. Again the jury was sworn as to all of the defendants and- not until a verdict had been rendered for the third time was any allegation heard that the present appellants were not properly in court. They made separate applications to the court to vacate the judgment, so far as they were concerned, in which, in their several petitions, they set forth “that the record in said suit shows that the process was not served upon the deponent; that no process was in fact served upon him; that deponent has never appeared or authorized an appearance to be entered for him, nor has he taken any part in said proceedings.” These petitions were answered and the facts, as hereinbefore stated, very fully set forth. The court refused to vacate the judgment.

The assignments of error cover the entry of judgment upon the verdict and the failure of the court to set aside and vacate the judgment as to the present appellants.

This record is as peculiar for what is not stated as for what is contained therein. There is no return by the sheriff, as to any of the defendants, of non est inventus. There is no record anywhere as to the defendants for whom Mr. O’Callaghan appears, nor anything to limit the effect of his appearance and participation in the several trials. The plea does not state that it was made on behalf of those for whom an appearance was entered or on behalf of those who were represented by an attorney interpleaded with others. The jury was sworn three several times as to all the defendants, without an objection of any kind on the part of two learned members of the bar who represented the defendants, at least at two of those trials, and, in the printed reply of the appellants, allusion is made to but one of the attorneys, and it is stated that “in signing papers as attorney for defendant, he had in mind no other defendants than those for whom he appeared and whom he was authorized to represent.” Nothing whatever is stated as to the other attorney who appears before us and was actively concerned from the time of the first trial throughout all the proceedings.

Whatever the ground upon which the court below entered judgment against all the defendants, as to whom the jury was sworn and against whom a verdict was rendered, and refused to vacate the judgment so far as the present appellants are concerned, it seems to us that there was sufficient ground for so doing. This would seem to be one of the cases evidently in the mind of Mr. Justice Williams, in writing the opinion in Miller’s Appeal, supra, where it is said, as already quoted: “There are some cases in which actual knowledge of the pend-ency of an action at law, or the existence of an incumbrance, or the like, may take the place of legal notice.”

This is not a case where the fact of examination of the defendants as witnesses “stands alone.” There are many other “ circumstances shown, connecting the appellants directly with the litigation,” as in fact parties thereto, which are sufficient in our opinion to determine that they should “be held bound by the result.” See Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33; s. c., 197 Pa. 230. See also Southern B. & L. Assn. v. Penna. Fire Ins. Co., 23 Pa. Superior Ct. 88.

None of the assignments of error is sustained.

Judgment affirmed.


author: Rice, P. J.,

text:
    Gingerbread Man Company, Appellant, v. Schumacher.

      Bailment — Bailment for mutual benefit — Degree of care — Injury to goods — Affidavit of defense.

    Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject-matter thereof, and is responsible only for ordinary negligence. He is not liable if the subject-matter of the bailment has been injured by accident or some other means wholly without his default.
    In an action to recover the value of theatrical costumes delivered to the defendant to be cleaned, and not returned by him, an affidavit of defense is sufficient which avers that the defendant employed a competent man to do the work, that the process employed was the best known to the trade; that special care was used; that notwithstanding that every care and precaution was taken in the handling and cleaning of the costumes, the materials used in cleaning were in some unaccountable way ignited, and a fire resulted, destroying some' of the costumes and damaging others, and that an offer was made to the plaintiff to repair the damaged goods, and put them in as good condition as before, but that plaintiff refused such offer.
    Argued Dec. 11, 1907.
    Appeal, No. 207, Oct. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 4,539, discharging rule for judgment for want of a sufficient affidavit of defense in case of The Gingerbread Man Company v. Henry Schumacher.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover the value of certain theatrical costumes.
    The averments of the affidavit of defense are set forth in the opinion of the Superior Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      February 28, 1908:

      Arthur S. Arnold, for appellant.
    — Where goods bailed are returned in a damaged state or not returned at all, the law will presume negligence on the part of the bailee and impose upon him the burden of showing that he exercised such care as was required to the bailment: Funkhouser v. Wagner, 62 Illinois, 59; Goodfellow v. Meegan, 32 Missouri, 280; Ford v. Simmons, 13 Louisiana, 397; Beckman v. Shouse, 5 Rawle, 179; Clark & Co. v. Spence, 10 Watts, 335; Shenlc v. Philadelphia Steam Propeller Company, 60 Pa. 109; Logan v. Mathews, 6 Pa. 417; Shafer v. Lacock, 168 Pa. 497.

      Henry G. Hart, for appellee.
    — Where the defendant, as bailee, accounts for the loss or injury in a way not to implicate himself in a charge of negligence, this is a sufficient defense, without further proof of due care on his part, and the plaintiff cannot then recover without proving that the loss or injury was occasioned by the bailee’s negligence: Zell v. Dunlde, 156 Pa. 353; Tower v. Grocers’ Supply, etc., Co., 159 Pa. 106; Selden v. Neemes, 43 Pa. 421; Erie Bank v. Smith, 8 Phila. 68.
   Opinion by

Rice, P. J.,

The plaintiff’s demand in this action of assumpsit is for the value of certain theatrical costumes delivered to the defendant to be cleaned, which, the plaintiff alleges, the defendant neglected and refused to return. It is averred in the affidavit of defense, in substance, that the, defendant agreed with the plaintiff that he would take the work and have it done by one Dorfner, an experienced man engaged in the cleaning, scouring and dying business; that under defendant’s directions Dorfner received the goods and began the work; that the process employed by Dorfner to clean the costumes was the best known to the trade; that special care was used; that “notwithstanding that every care and precaution was taken in the handling and cleaning of the costumes, the materials used in cleaning were, in some unaccountable way, ignited, and a fire resulted, destroying some of the costumes, damaging others, and wrecking a portion of Dorfner’s buildings;” and that Dorfner offered to repair the damaged goods and put them in as good condition as when they were delivered to the defendant, but the plaintiff refused to receive them in that condition.

Passing the other questions raised by the affidavit of defense, and assuming for the purposes of this appeal, that the affidavit of defense law applies to the case, and that the defendant was the bailee of the goods, the court was right in holding that the affidavit was sufficient to prevent summary judgment. Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject-matter thereof, and is responsible only for ordinary negligence. He is not liable if the subject-matter of the bailment has been injured by accident or some other means wholly without his default. To state the proposition in another form, it is sufficient excuse for nondelivery that the property has been destroyed without fault of the bailee. “If the article be lost by theft, fire, or otherwise, notwithstanding the exercise of ordinary care, the loss falls on the owner of the goods and not on the workman:” Zell v. Dunkle, 156 Pa. 353. It may seem improbable that proper materials for cleaning, if due care was used in applying them, would ignite and destroy the articles being cleaned, or that, if they had ignited, the cause could not be shown, but neither is an impossibility. In other words, it cannot be declared as matter of law that the averments of the affidavit as to the exercise of care are contradicted and rendered nugatory by the admission that the ignition of the cleaning materials cannot be accounted for. Under any view of the law as to the burden of proof in a case where a bailee for hire fails to return the subject of the bailment, the affidavit of defense was sufficient to entitle the defendant to a jury trial.

The appeal is dismissed at the costs of the plaintiff, but without prejudice to its right to trial by jury and a second appeal after final judgment.