text:
    Ligon v. John A. Beck Salt Company, Appellant.
    July 20, 1910:

      Negligence — Master and servant — Elevator—Evidence.
    In an action by an employee against an employer to recover damages for injuries resulting from a fall from an elevator, the case is for the jury and a verdict and judgment for plaintiff will be sustained where it appears that the plaintiff on the morning of the accident reported the elevator to be out of repair to the defendant’s general superintendent and manager who hired and discharged men and supervised the general operation of the plant, and that the superintendent after an examination of the elevator told the plaintiff “Go ahead, that it was all right,” and that the plaintiff in pursuance of this direction went on to the elevator and was injured.
    Argued April 28, 1910.
    Appeal, No. 176, April T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1906, No. 5, on verdict for plaintiff in case of Jefferson Ligón v. John A. Beck Salt Company.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,024.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. S. & E. G. Ferguson, for appellant.

      Meredith B. Marshall, with him Thos. M. & Body P. Marshall, for appellee.
   Opinion by

Orlady, J.,

The only assignment of error in this case is, that, under all the evidence in the case, the verdict should be for the defendant. The appellant cites no authorities in his argument, but submits a critical.analysis of the testimony in an endeavor to satisfy this court that the error of which he complains was so glaring that the court below should have directed the verdict in favor of the defendant.

The plaintiff was employed to convey salt in a wheelbarrow from the first to the second floor of the appellant’s plant, the method being to place the loaded wheelbarrow on an elevator, which was a platform car, about twelve feet in length and nine feet in width, and which was raised and lowered by a wire cable passing over a drum and operated by a lever rod running along the side of the elevator. At the time of the accident, the platform was within two feet of the second floor, when the elevator suddenly started back, and after having dropped about a foot it was suddenly stopped, and the plaintiff was jarred and thrown from the platform.

It appeared on the trial that previous to this accident the elevator was complained 'of as being defective by employees and was repaired by the company. On the morning of the accident the plaintiff reported the elevator to be out of repair to the general superintendent and manager of the business and works, who hired and discharged the men and supervised the general operation of the plant. After an examination of the elevator had been made by this superintendent the same morning the plaintiff was directed by him “to go ahead, that it was all right.” The alleged defect consisted of a piece being broken out of the edge of the wheel over which the wire rope ran. The plaintiff contended that it was “ V” shaped and was of considerable size, and the defendant that it was quite small; and although the superintendent admitted that his attention had been called to it, he did not consider it of sufficient importance to stop the operation of the elevator. The defendant in his history of. the case says: “Our contention was that the plaintiff failed to show the negligence alleged, and that the accident happened notwithstanding due and proper care and inspection on our part. That it happened from a break in a wheel, and the probabilities of which break there was nothing to indicate.”

The testimony was brief and quite direct that the integrity of the wheel thus broken required a more critical inspection than has been given to it. It was noticeably defective, and it was for the jury to say whether the subsequent fracture of the body of the wheel should not have been ascertained or anticipated by making a more careful examination by the superintendent.

The rule in such a case has been so fully and recently declared that it is not here necessary to more than refer to Reese v. Clark, 198 Pa. 312; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Brownfield v. Hughes, 128 Pa. 194; Groves v. McNeil, 226 Pa. 345.

There was abundant evidence to justify the finding that the defendant company was negligent in failing to repair the elevator by replacing the broken and worn cable wheel. The plaintiff was warranted in acting upon the direction of the superintendent and vice principal. The assurance that the wheel was all right and that he should go ahead with his 'work justified the employee in continuing-to work at the place assigned to him and with the appliances furnished by the master.

The assignment of error is not sustained, and the judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Thompson, Appellant, v. Donaldson.

      Practice, C. P. — Affidavit of defense — Waiver by plaintiff — Arbitration.

    1. A party who intends to ask for judgment for the reason that the affidavit of defense is deficient must do so before he has taken any steps in the case, subsequent to the affidavit, calculated to mislead his opponent.
    2. Where a plaintiff after having filed his statement of claim, enters a rule for arbitration, and the defendant files an affidavit of defense, and thereafter the plaintiff proceeds with the arbitration until an adverse decision is rendered against him by arbitrators, he cannot after such decision, enter a rule upon the defendant for judgment for want of a sufficient affidavit of defense.
    July 20, 1910:
    Argued April 29, 1910.
    Appeal, No. 186, April T., 1910, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Nov. T., 1909, No. 2, discharging rule for judgment for want of a sufficient affidavit of defense in case of Scott Thompson and W. T. Fogal v. Joseph Donaldson and Frank L. Armstrong.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.'
    The opinion of the Superior Court states the case.
    The court below in an opinion by Evans, J., discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      John A. Metz, for appellants.
    The plaintiffs have not waived their right to object to the sufficiency of the affidavit of defense by reason of the reference of the cause to arbitrators, at the instance of the plaintiffs, fifteen days before the affidavit of defense was filed, and an award in favor of the plaintiffs, from which the defendants appealed: Horner v. Horner, 145 Pa. 258.

      N. B. Madden, with him E. L. Mattern, for appellees.—
    Appellants by their procedure waived their right to object to the sufficiency of the affidavit of defense: Gregg v. Meeker, 4 Binn. 428; Duncan v. Bell, 28 Pa. 516; O’Neal v. Rupp, 22 Pa. 395.
   Opinion by

Rice, P. J.,

This is an appeal from the order discharging plaintiffs’ rule for judgment for want of a sufficient affidavit of defense. The court did not pass on the sufficiency of the affidavit, but held in a well-considered opinion that- the plaintiffs had waived the right to ask for judgment for deficiency in the affidavit of defense. The facts are as follows: The plaintiffs filed their statement of claim before the return day and on the return day entered a rule for compulsory arbitration. On the day before the arbitrators were to be chosen the defendants filed an affidavit admitting $91.90 to be due, and setting up a defense to the balance of the claim. Before the meeting of the arbitrators the plaintiffs, by prsecipe filed, entered judgment for the amount admitted and elected to proceed for the balance. The arbitrators made an award in favor of the plaintiffs in the sum of $368, from which the defendants appealed. After the appeal and after satisfying the judgment for the amount admitted, the plaintiffs entered the rule for judgment for $719.63, this being the balance of their claim after deducting the $91.90. It was held in Taber v. Olmsted, 158 Pa. 351, that, where there is no standing or general rule of court allowing plaintiff to take judgment and have execution for that part of his claim which is admitted and to proceed in due legal course for the part which is contested, the court has power to make a special order in a particular case to permit the plaintiff so to do, and thereafter to proceed by motion for judgment for want of a sufficient affidavit of defense. It is thus seen that the plaintiffs had their election either to contest the sufficiency of the affidavit by entering'a rule for judgment or to treat it as sufficient and proceed for the collection of the contested balance by bringing the case to trial. They, however, did not avail themselves of the former right, but just as plainly elected to bring the case to trial on the merits as if they had ruled the defendants to plead and had put the cause at issue. In O’Neal v. Rupp, 22 Pa. 395, it was held that a party who intends to ask for judgment for the reason that the affidavit of defense is deficient must do so before he has taken any steps in the cause, subsequent to the affidavit, calculated to mislead his opponent. The rule laid down in that case was distinctly and unequivocally recognized and approved in Superior National Bank v. Stadelman, 153 Pa. 634, where it was said: “It was held in O’Neal v. Rupp, 22 Pa. 395, and Duncan v. Bell, 28 Pa. 516, that a plaintiff must move for judgment before he has taken any other steps, subsequent to the affidavit, calculated- to mislead the defendant. This was but the adoption by this court of the practice long previously existing in Philadelphia county, where affidavits of defense originated, and which has continued down to the present time: Hamer v. Humphreys, 2 Miles, 28; Johnston v. Ballentine, 1 W, N. C. 626. This long-established practice it is not desirable, nor is it intended, to disturb.” The authority of O’Neal v. Rupp and the principle there stated, and reiterated in Superior National Bank v. Stadelman, were again distinctly affirmed in Bordentown Banking Co. v. Restein, 214 Pa. 30. The third paragraph of the syllabus in Duncan v. Bell would exactly rule the case before us, and this paragraph of the syllabus is sustained by the opinion -of Armstrong, J., but it was pointed out in Horner v. Horner, 145 Pa. 258, that that case as reported is misleading because the only point decided was that the affidavit was filed in time. This seems to be correct, because two of the judges dissented in Duncan v. Bell, and one, while concurring in the judgment, did so exclusively upon the point last mentioned. We, therefore, do not cite the case of Duncan v. Bell as a controlling authority in the present case. It certainly is not an authority against the position taken by the common pleas in the present case. That position is also sustained to some extent by the cases of Gregg v. Meeker, 4 Binn. 428, and Lusk v. Garrett, 6 W. & S. 89. But even treating the question as a new one and applying the well-settled principle upon which a waiver of the right to judgment for want of a sufficient affidavit of defense is implied by the' action of a plaintiff, we think there can be no reason to doubt the correctness of the conclusion reached by the learned judge of the common pleas, unless the rule has been changed by statute. It is contended that the Act of May 14, 1874, P. L. 159, changed the rule, and if the words “and a rule of reference shall in no case prevent the plaintiff from moving for or the court from entering judgment for want of a sufficient affidavit of defense” stood alone, unexplained and unqualified by the context, it might be argued, with some plausibility, that no waiver could be implied from the mere fact that the plaintiffs went on with the arbitration notwithstanding the affidavit of defense had been filed before the arbitrators were chosen. But, looking at the context, there is strong reason for believing that the rule of reference which the legislature had in view was one taken by the defendants. Prior to the passage of this act the defendants could arbitrate the case even before statement filed by the plaintiffs; The purpose of the act was to prevent the defendants, under certain circumstances, from ruling the case for arbitration until after they had filed an affidavit of defense, and then in order to put it out of the power of the defendants to prevent the plaintiffs from contesting the sufficiency of the affidavit of defense the words above quoted were added. But, even if it be conceded that the act may apply under some circumstances to a case where the rule of reference has been taken by the plaintiffs, we think it cannot apply under all the circumstances of the present case to enable the plaintiffs, after having arbitrated the case and obtained an award for less than half their claim, to resort then to this mode of obtaining judgment for the whole claim. Judge Evans well says, “Every step taken by the plaintiff, commencing with the choosing of the arbitrators, was unnecessary if he intended to insist that the affidavit of defense was deficient. The costs of the arbitration which the defendant would be compelled to pay if judgment be entered were unnecessary costs imposed upon him by the voluntary act of the plaintiffs if the plaintiffs were entitled to judgment for want of a sufficient affidavit of defense.”

The appeal is dismissed at the costs of the appellants, without prejudice, etc.


author: Morrison, J.,

text:
    Krings v. Krings, Appellant.
    July 20, 1910:

      Deed — Mental capacity of grantor — Consideration—Fraud—Equity.
    On a bill in equity to declare a deed void, a decree in favor of plaintiff will not be reversed by the appellate court where it is based on findings of fact sustained by competent proof to the effect that the grantor at the time of the execution of the deed was of feeble mind and incompetent to transact business, that the deed was without consideration, and that the defendants had fraudulently conspired to procure its execution.
    Argued April 29, 1910.
    Appeal No. 160, April T., 1910, by defendant, from decree of C. P. No. 2 Allegheny Co., July T., 1909, No. 691; on bill in equity in case of Ferdinand Krings v. Martin Krings.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity to declare a deed void. Before Frazer, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree in favor of the plaintiff.

      Charles W. Jones, for appellant.

      T. C. Jones, for appellee.
   Opinion by

Morrison, J.,

This case and the suit of the same plaintiff against Maud Peterson Crossin at No. 161 of April Term, 1910, were tried together in the court below and a similar decree was entered in each case against the defendant and each defendant appealed to this court. It is agreed on all hands that the questions of fact and of law are precisely alike in these cases. They were bills in equity and averred in substance: 1. Ownership of plaintiff of the real estate described in the bill on February 23, 1909, and conveyance of same by deed dated on said date to the defendant. 2. That the deed was without consideration and that on said date plaintiff was of feeble mind and incompetent to transact business and to realize what he was doing. 3. That defendant knowing this conspired to procure the deed. The prayers are that the deed may be declared void. That the defendant be declared a trustee and decreed to reconvey the said real estate to plaintiff.

The cases both being alike, this opinion, although it will be filed in No. 160, April Term, 1910, is intended also to apply to said case at No. 161 of April Term, 1910, and in the latter we will only file a formal order dismissing the exceptions and affirming the decree, etc.

A careful examination of the testimony, findings of fact, conclusions of law, exceptions, arguments of counsel and the decree convinces us that the specifications of error are without merit. The testimony convinces us that the plaintiff was, at the time he executed and delivered the deeds in question, so mentally weak and irresponsible that he was not competent to transact business and take proper care of his property; that in fact each of said defendants overreached and defrauded the plaintiff and the effect of the deeds which they secured from this feeble old man left him without a. home and practically a pauper, and neither of said defendants gave him any substantial consideration for said conveyances.

We discover no reversible error in the record of said cases and we are well satisfied with the decree made by the court below.

The assignments of error are all overruled and the decree is affirmed. And it is further ordered and decreed that the appellant pay the costs of this appeal.


text:
    Krings v. Crossin, Appellant.
    July 20, 1910:
   ■Opinion by

Morrison, J.,

For the reasons given in the opinion this day filed in Ferdinand Krings v. Martin Krings, ante, p. 590, the assignments'of error are all overruled and the decree is affirmed. And it is further ordered and decreed that the appellant pay the costs of this appeal.


author: Mobbison, J.,

text:
    Cauffiel, Appellant, v. Johnstown.

      Equity — Findings of fact — Municipal contract — Interest of councilmen.

    On a bill in equity to declare a municipal contract invalid because ■ several councilmen who had voted for it were stockholders of the cor- , poration with which the contract was made, a finding by the lower court based upon sufficient evidence that the councilmen in question had parted with their stock absolutely and in good faith before they voted for the'contract, will not be disturbed in the absence of manifest error.
    Argued May 2, 1910.
    Appeal, No. 71, April T., 1910, by plaintiff, from decree of C. P. Cambria Co., No. 2, March T., 1909, dismissing bill in equity in case of Joseph Cauffiel v. The City of Johnstown, Alexander Wilson, Mayor, George Hamilton, City Clerk, and John H. Horrocks, City Controller.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity to declare a municipal contract void. Before Kooser, P. J.
    The bill charged that certain councilmen had voted for the contract in question when they were stockholders of the company. The court found as a fact that they had sold and assigned their stock in good faith and absolutely • before they voted for the contract.
    July 20, 1910:

      Error assigned was decree dismissing bill in equity.

      John Marrón, with him Frank P. Barnhart, for appellant.

      Percy Allen Rose, with him Forest Rose and W. David Lloyd, for appellees.
   Opinion by

Mobbison, J.,

A careful examination of the testimony, findings of fact, conclusions of law, exceptions, arguments of counsel and the opinion and decree of the court below convinces us that the case was correctly tried and a proper decision reached, and, therefore, we are of opinion that it would serve no good purpose for us to discuss the various questions raised by the assignments of error. We are all satisfied with the findings of fact, conclusions of law and decree of the court below.

The assignments of error are all overruled and the decree affirmed. And it is further ordered and -decreed that the plaintiff pay the costs of this appeal.


text:
    Ewald v. Fidelity Title & Trust Company, Appellant.

      Landlord and tenant — Distress—Illegal distress — Picking lock.

    1. Where a landlord and his agent picks the lock of an outer door of the demised premises for the purpose of distraining the tenant’s goods he commits an illegal act and the distress thus made is contrary to law and invalid.
    2. In an action of replevin for goods distrained under a'landlord’s warrant, the undenied averments of the statement of claim are admissible in evidence at the trial, if it appears that the landlord himself in his lifetime had sworn to the affidavit of defense. Such a ruling is vindicated by see. 6 of the Act of April 19, 1901, P. L. 88.
    July 20, 1910:
    3. Where in an action of replevin the plaintiff offers the undenied averments of the statement of claim, and an objection to the offer is overruled, but no exception is taken to the action of the court, the ruling cannot be assigned for error nor can it be reviewed on a motion for judgment for defendant non obstante veredicto.
    Argued April 27, 1910.
    Appeal, No. 153, April T., 1910, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 685, for plaintiff non obstante veredicto in case of J. B. Ewald v. Fidelity Title & Trust Company of Pittsburg, Ella B. Kirk and Walter M. Kirk, Executors of the last will and testament of David Kirk, deceased, and D. M. Saylor, Constable.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Replevin for goods alleged to have been unlawfully distrained.
    Verdict for defendants for $162.45. The court subsequently entered judgment for plaintiff non obstante veredicto.

      Errors assigned were in admitting in evidence the undenied averments of the statement of claim, and in entering judgment for plaintiff non obstante veredicto.

      A. B. Reid, with him A. V. D. Watterson, for appellants.

      Charles A. Lambie, with him William A. Griffith and David E. Mitchell, for appellee.
   Opinion by

Rice, P. J.,

This was an action of replevin for goods distrained under a landlord’s warrant. The plaintiff’s statement contained the following material averment, after averring his title to the goods: “Whereupon the said landlord issued a landlord’s warrant against the said plaintiff and levied upon the goods hereinabove designated at a time when the said plaintiff and his wife were away from the said premises, and in order to make said levy picked the lock of the kitchen door of the said apartment and entered the same and immediately took the locks off the kitchen door and the front door and placed a watchman in charge of said premises and prevented said plaintiff from entering his own apartment for a period of 5 days, and until more than 24 hours after said writ of replevin had been issued and placed in the hands of the sheriff for service.” The defendant denied in his affidavit of defense that “anything was done under said landlord’s warrant, either by himself or said constable, except that which they were authorized to do under the laws of this state.” But he did not deny the specific allegations of fact above quoted; so that this portion of the affidavit must be regarded as merely a denial that a distress made in that way was contrary to law. Upon this subject the learned judge said: “Unquestionably if the landlord had broken the lock in order to gain entrance into the house to make the levy, it would have been an unlawful act, and we fail to see any distinction between the breaking of the lock and the picking of the lock. We are of opinion that the admitted facts in this case show that the landlord was a trespasser in making the levy, and that the levy was, therefore, illegal.” We concur in this conclusion. The distinction between such a mode of gaining entrance to distrain and entering by an open window or by an outer door by the usual means adopted by persons having access to the building, as, for instance, the mere lifting of a latch, or the turning of a key left in the door, or the drawing back of a bolt, is pointed out in Jackson and Gross on Landlord and Tenant, secs. 1157-1158, and the cases cited in the notes. Even as to some of the latter modes of entering the cases are not entirely harmonious. But no case has been cited (and, on principle, we do not see how there could be one) which holds that it is lawful for the distrainor, when entering in the first instance to distrain, to pick or break the lock of an outer door, or that there is any essential distinction between the two modes of gaining entrance. The thought was well expressed by Judge McPherson as follows: “If a man merely latches his door, or if he purposely leaves the key in the lock upon the outside, he may perhaps be regarded as inviting all persons to enter his house who have business therein. But, however that may be, he certainly is not extending an invitation to enter if he locks the door and carries the key away in his pocket. Instead of making it easy to enter, he is thus doing all that he can to prevent an entrance; and if his landlord afterwards picks the lock or (as in the case before us) avails himself of another key which happens to fit, he does a legal wrong as completely, and of the same kind, as if he broke down the door with a hammer:” Murray v. Vaughn, 4 Pa. Dist. Rep. 631. See, also, 24 Cyc. of Law and Procedure, 1313; Williams on Landlord and Tenant (2 ed.), 106-107.

Appellants’ counsel refer to certain provisions of the lease relative to the right of the landlord to re-enter and dispossess the tenant; but none of these provisions expressly reserves the right of entry to distrain by breaking-down the outer door or by picking the lock, and we are of opinion that they cannot be extended, by implication, to justify a mode of entry to distrain which otherwise would be unlawful. Moreover, the affidavit of defense does not distinctly set up these provisions as justification for the entry, but expressly or by implication admits that the entry was made for the purpose of distraining for rent in arrear.

It is alleged in the second assignment that the court erred in admitting in evidence the undenied averments of the statement of claim. In support of this assignment it is argued that the landlord, David Kirk, having died before the trial, the admission of the evidence was tantamount to the admission of the testimony of the plaintiff himself, contrary to the law which prevents him from testifying as to matters occurring before the death of the other party. This contention cannot be sustained. The affidavit of defense was made by David Kirk, and the significance of the evidence consists in the fact that he did not deny, but virtually admitted, the averments of the statement of claim under consideration. In further support of this assignment appellants’ counsel cite May v. Newingham, 17 Pa. Superior Ct. 469, which case was tried before the passage of the act of 1901 hereinafter referred to. The point decided in that case was, that a rule of court providing that in actions founded on contracts statements of fact in the pleadings, verified by affidavit, shall be taken as conclusive at the trial, if not denied by a proper plea, verified by affidavit, does not apply to an action of replevin. The same seems to be true of the rule of court quoted in the appellants’ brief: Digby’s Rules of Court, 14. But the ruling complained of does not depend for its vindication upon a rule of court. The Act of April 19, 1901, P. L. 88, relating to replevin, extends the right to take judgment for want of sufficient affidavit of defense to that action,- and sec. 6 expressly provides that the declaration and affidavit of defense as originally filed, or as amended by leave of court, shall constitute the issues under which, without other pléa, the questions of. title to, or right of possession of, the goods and chattels as between all the parties shall be determined by the jury. If the defendant in his affidavit of defense had expressly admitted the allegations of the statement of claim heretofore quoted, clearly such admission could have been offered as evidence of the facts alleged. Virtually the same result was reached by the manner in which the issue was made up. As already pointed out, the affidavit did not deny the facts alleged, and when the portion of the statement of claim was offered in evidence the objection was not made that the facts could not be proved in that way, but the invalid objection was made that the facts were denied. As shown by the assignment of error, the offer was confined by the court to the undenied averments of fact; and to the ruling admitting the offer no exception was taken. We are of opinion, (1) that the ruling, not having been excepted to, could not be assigned for error; and (2) that under the circumstances the defendant was not in a position to question the competency of that' method of proving the fact upon the hearing of a motion for judgment non obstante or upon appeal. The proper mode of raising the question as to the method of proof, was by exception to the ruling; and, as we have said, none was taken. If an exception had been taken, the principle referred to in the second paragraph of the syllabus of Liquid Carbonic Co. v. Truby, 40 Pa. Superior Ct. 634, might perhaps have been applicable. But, clearly, the act of 1905 was not intended to provide a mode for reviewing rulings upon evidence which were not excepted to at the time they were made.

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


text:
    Umbel’s Election.

      Courts — Judges—Interested judge — Calling in outside judge — Additional judge — Acts of April 22,1856, P. L. 500, April 2,1860, P. L. 552, May 1, 1861, P. L. 494, April 9, 1874, P■ A 54, August 7, 1888, P. L. (1885) 828, June 15,1887, P. L. 404, June 12,1895, P. L. 190, and July 18, 1901, P. L. 669.

    1. In a county where there are two judges, the additional law judge is qualified to try a contest growing out of the accounts of the election expenses of the president judge. In such a case it is not-neeessary to call in an outside judge from another county as provided by the Act of April 22, 1856, P. L. 500. Com. ex rel. v. White, 161 Pa. 576, distinguished.

      Constitutional law — Title of statutes — Election and powers of additional law judges — Acts of April 9,1874, P- A 54, August 7,1888, P. L. (1885) 828, June 12, 1895, P. L. 190, and July 18, 1901, P. L. 669.

    2. The titles of the Acts of April 9, 1874, P. L. 54, August 7, 1883, P. L. (1885) 323, June 12, 1895, P. L. 190, and July 18, 1901, P. L. 669, are sufficient to give notice of the general scope of the acts, particularly as to the election and powers of additional law judges.

      Election law — Expenditures of candidates — Accounts—Act of March 5, 1906, P. L. 78.

    3. An account of a candidate for nomination showing expenditures made in his behalf to secure the nomination, is insufficient under the Act of March 5, 1906, P. L. 78, if it shows moneys paid by the candidate to individual agents of his own to be used on his behalf, but fails to show for what purposes the moneys thus intrusted to the agents were used.
    4. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom, and the purpose for which, the agent paid the money, is not such “a full, true and detailed account,” as the act of 1906 plainly contemplated.
    5. To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally, or by his agent for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; and, moreover, the account must be accompanied by vouchers for all sums expended exceeding $10.00 in amount. Filing the receipts of his agent for the money placed by him in their hands does not fully meet the requirements of the act.
    6. In a contest over a candidate’s account, an agent to whom the candidate intrusted money to be expended, may be asked to. give a detailed statement of the manner in which he expended the sums intrusted to him, without any preliminary proof that the candidate knew and consented to the disbursement of the moneys by the agent for illegal purposes. Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292, distinguished and explained.
    7. The agent of the candidate may be asked whether he had spent the moneys received by him from the candidate in the purchase of a vote, or whether he had used moneys of his own for such a purpose with the candidate’s knowledge and consent.
    8. An offer to prove that the agent expended moneys received from the candidate for the purchase of votes to be followed by further proof that such practice and means of getting votes was known to and consented to by the candidate, should be admitted.
    9. In a contest over a candidate’s account of expenditures it is not competent upon cross-examination of the candidate to inquire as to his motive in permitting his counsel to raise objections which they deemed proper to the offer or admission of testimony.
    10. Where a candidate includes in his account the price of a box of cigars, he is not estopped by the fact that he included such an item in his account, from showing that the use of the cigars was but the common courtesy which men extend to friends without any thought on his part or their part that the latter would be influenced in their votes thereby.
    Argued April 18, 1910.
    Appeal, No. 125, April T., 1910, by R. I. Patterson, from order of Q. S. Fayette Co., June Sessions, 1910, No. 257, dismissing petition for audit In re Audit of Account of Robert E. Umbel, Candidate for Democratic Nomination to the Office of Judge.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Reversed.
    Petition for audit. Before Van Swearingen, J.
    From the record it appeared that on July 13, 1909, Van Swearingen, J., made an order dismissing a petition to have the proceedings heard and tried before James Inghram, the president judge residing nearest the place of trial. [1]
    At the trial when Henry Bell was on the stand, the following offer-was made:
    The account showing a payment in lump sum on June 3, 1909, to S. E. Frock of the sum of $1,050, we propose to show by the witness on the stand that part of the money received by Mr. Frock from the accountant was expended by him in the purchase of this man’s vote, to be followed by further testimony that such practice and means of getting votes was known to and consented to by the accountant.
    Mr. Higbee: Objected to by accountant unless it is first shown by proof that the accountant had knowledge and notice of what is offered to be proved, and generally as incompetent and irrelevant.
    Mr. Stevenson: I take it we have a right to prove it this way and show the knowledge afterwards.
    The Court: Until it is first shown that this was done with the knowledge or consent of the candidate, the objection is sustained. Exception to petitioners.
    Mr. Stevenson: I make a further offer to prove by the witness on the stand that in that booth, the voting booth in the second ward of Uniontown, on the day of the primaries, Mr. S. E. Frock paid this witness $3.00 of the money received by him from the accountant and in return for it marked this witness’ vote for the accountant as a candidate, to be followed by other evidence that this act was with the knowledge and consent of the accountant.
    Mr. Higbee: That is objected to unless it is first shown by evidence that the act was done with the knowledge and consent of the accountant, and, further, as generally incompetent and irrelevant.
    The Court: It has already been decided by the Superior Court that acts of this kind cannot be proved unless it is first shown that they were performed with the knowledge or consent of the candidate. For that reason the objection is sustained. Exception to petitioner. [2]
    S. E. Frock, a witness for petitioners, was asked this question:
    "Q. Did you, or did you not, spend this money for the purposes mentioned in these different sections?”
    Mr. Higbee: Objected to for the reasons given in the preceding objection.
    The Court: State your purpose, Mr. Stevenson.
    Mr. Stevenson: The witness having certified over his hand that this sum of $1,050 was to be expended under the first, second, sixth, seventh and eighth paragraphs of sec. 4 of the act of 1906, I propose to ask the witness whether or not he did expend this sum under these sections.
    The Court: The objection is sustained. If the purpose is to show an illegal expenditure, it is incompetent until it be first shown that the illegal expenditure was made with the knowledge and consent of the candidate. Exception to petitioners. [3]
    “Q. Did you expend it ($1,050) in pursuance of this act of 1906?”
    Mr. Higbee: That is objected to for the same reason as given in support of the preceding objection.
    The Court: Have you no purpose?
    Mr. Stevenson: No further purpose than to ascertain whether or not this receipt and voucher and the item in the account are correct and true, and to be followed by further evidence in addition to his own admissions, that he received this money from Mr. Umbel for this purpose, thus constituting himself, or being constituted, the agent of the candidate to make these expenditures, and generally for the purpose of ascertaining whether or not this account is correct and true.
    Mr. Higbee: Objected to for the reason given in support of the preceding objection.
    The Court: As we have already stated, if the purpose is to show any illegal expenditure, we think it incompetent until it first be shown that the illegal expenditures were made with the knowledge or consent of the candidate; and until this is done the objection is sustained. Exception to petitioners. [4]
    “Q. Did you expend any of this money for the dissemination of information?”
    Mr. Higbee: That is objected to.
    Mr. Stevenson: That is a legal expenditure.
    The Court: The objection is sustained. Exception to petitioners. [5]
    Mr. Stevenson: For the purpose of showing the details which the act of assembly requires, I propose to ask the witness to give us a detailed statement of the manner in which he expended this $1,050. This, also, for the purpose of ascertaining whether or not the statement made in this receipt that it was spent under the act of 1906 is or is not correct.
    Mr. Higbee: Objected to for the reason that if the expenditures were lawful it is immaterial, and if they were not lawful there is no evidence yet offered showing that such expenditures were made with the knowledge or consent of the candidate, and generally as incompetent and irrelevant.
    Mr. Stevenson: Your honor, there is evidence that he reported these expenditures to the candidate.
    The Court: For the reasons repeatedly stated by the court, the objection is sustained. Exception to petitioners. [6]
    B. F. Sterling, a witness for petitioners, was asked this question:
    “Q. The account shows, Mr. Sterling, that you received $250 on May 20; $300 on June 1; $400 on June 4, and $220 on June 8. I ask you to give, so far as you can, a detailed statement of the manner in which you expended that sum of $1,170?”
    Mr. Higbee: For what purpose?
    Mr. Stevenson: For the purpose of showing whether or not the receipt given by the witness and the amounts taken credit for in the account are true and correct as certified by the receipt itself and also by the affidavit of the candidate, and for the purpose of getting a detailed statement as required by the act of assembly.
    Mr. Higbee: Objected to as incompetent and irrelevant and immaterial, for the reasons as set out in extenso in connection with the preceding offer.
    The Court: The objection is sustained. Exception to petitioners. If you want to ask him if he got any other money you may. [7]
    “Q. I ask the witness on the stand to give us a detailed statement as to the manner, the amount, the dates and the persons to whom paid, of the item of $250 received by him on May 20, and being the amount mentioned in his receipt No. 17.
    Mr. Higbee: The accountant interposes the same objection as to a similar question propounded to the witness Frock.
    The Court: For reasons already stated by the court when practically the same question was asked a preceding witness, the objection is sustained. Exception to petitioners. [8]
    “Q. I also ask the witness to give me as near as he can the names of the parties to whom this money was paid, the dates when paid, the purpose for which it was paid, covering this entire expenditure of $1,170?”

      Mr. Higbee: The accountant interposes the same objection.
    The Court: For reasons already given by the court, the objection is- sustained. Exception to petitioners. [9]
    Mr. Stevenson to accountant:
    “Q. Then, I ask you, if this money was all properly expended, why you should object, through your counsel, to these witnesses stating for what purpose they expended this money and to whom?”
    Mr. Higbee: That is objected to. He is not trying the case; we are.
    The Court: The objection is sustained. Exception to petitioners.
    “Q. I will ask the witness if he has any objection to answering the question?”
    Mr. Higbee: That is objected to.
    The Court: The objection is sustained. Exception to petitioner. [10]
    “Q. Would it not be possible for you, judge, to secure itemized accounts of these expenditures?”
    Mr. Higbee: That is objected to.
    The Court: He can answer whether he could or not.
    “A. I do not know. Q. Would you be willing to get them?”
    Mr. Higbee: That is objected to as incompetent and irrelevant.
    The Court: The objection is sustained. Exception to petitioners. [11]
    Mr. Stevenson to D. W. McDonald, a witness for petitioners:
    “Q. Mr. McDonald, did you receive and expend any other moneys in behalf of the candidate with the knowledge or consent of the candidate?”
    Mr. Higbee: That is objected to.
    The Court: For the reasons given by the court on objections to practically the same questions asked previous witnesses, and for the further reason that it now appears of record that the candidate authorized no other expenditures of money than those set out in his account, and had no knowledge that such were made, if there were any made, and did not consent to any such, the objection is sustained. Exception to petitioners. We understand this question to mean any other moneys from any other person than the accountant. [12]
    The court found, inter aha, as follows:
    [The accountant had no reason to believe, and had no knowledge, that any money was being spent in his behalf illegally, if any money was so spent.] [13]
    [The accountant had no knowledge of, and did not consent to, the expenditure of any portion of the above sums of money for illegitimate or unlawful purposes. If any such expenditures were made it was in disobedience of the instructions of the accountant.] [14]
    [No question is raised as to the legality of any of these expenditures, except to the payment to “Markell’s Drug Store, for one box of cigars, $3.00.” These cigars were not used for the purpose of influencing voters, but as a matter of personal entertainment at a meeting held in the interest of the accountant by a few of his close, personal and political friends, who were already actively at work in his behalf, and who would not be influenced in any particular by a box of cigars.] [15]
    [The account includes a statement of all moneys expended by the candidate in connection with his nomination.] [16]
    [No illegal election expenses were incurred by the accountant, and he had no knowledge of and did not consent to the incurring of illegal election expenses by his agents or representatives or any other persons. His account filed is true in that it contains a statement of all moneys expended by him.] [17]
    [And now, November 5, 1909, for the reasons set forth in the opinion herewith filed, it is ordered that the petition be and is now dismissed, and that the costs be paid by the accountant.] [18]

      July 20, 1910:

      Errors assigned were (1-18) the various rulings and findings above set forth.

      M. H. Stevenson, with him S. John Morrow, Frank P. Bush and H. S. Dumbaugh, for appellants.
    An outside judge should have been called: Com. ex rel. v. White, 161 Pa. 576; Evans’s App., 152 Pa. 401; Road in Phœnixville, 109 Pa. 44; Mansfield’s Case, 22 Pa. Superior Ct. 224; Likins’s Petition, 37 Pa. Superior Ct. 625; Bradbury v. Wagenhorst, 54 Pa. 180; Com. v. American Car & Foundry Co., 203 Pa. 302; Penna. R. R. Co. v. Pittsburg, 104 Pa. 522; Com. v. Kevin, 202 Pa. 23; Allegheny County v. Gibson, 90 Pa. 397.
    It was competent to ask agents how lump sums were spent: Bechtel’s Case, 39 Pa. Superior Ct. 292.
    The ruling that knowledge or consent on the accountant’s part must first be shown, is erroneous.
    The expenditures of money to procure one’s nomination or election to office are prima facie illegal.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him W. C. McKean and D. M. Hertzog, for appellee.
   Opinion by

Rice, P. J.,

At the primary election held on June 9, 1909, the respondent was a candidate for nomination, and was nominated, as a candidate for election to the office of judge of the court of common pleas of Fayette county. On June 19 following he filed an account of his expenses under the Act of March 5, 1906, P. L. 78. Upon the petition of the requisite number of qualified electors of the county, setting forth that the account was not such a full, true and detailed account as is required by the provisions of said act and did not meet the requirements of the same, that the petitioners were informed, believed and expected to be able to prove that the account was incomplete and incorrect and that large sums of money were disbursed contrary to law for the purpose of securing the nomination of the respondent, the court made an order, as provided in sec. 9 of the act, directing the clerk to certify the account to the court for audit. On July 13, 1909, the petitioners’ counsel suggested that the respondent was president judge of the district and moved the court, the Honorable J. Q. Van Swearingen, additional law judge of the district, then presiding, to order and direct, under the Act of April 22, 1856, P. L. 500, that the proceeding be tried and heard before the Honorable James Inghram, president judge of Greene county, he being the president judge residing nearest the place of trial and being disinterested. This motion was overruled and excepted to. It was renewed on the audit and again overruled and excepted to.. Judge Van Swearingen presided at the audit, and from the decree of court made by him dismissing the petition and directing the costs to be paid by the respondent we have this appeal by the petitioners.

The subject of the first assignment is the refusal of the motion above referred to. The act of 1856 reads as follows: “That whenever a president judge shall be a party in any suit, prosecution or proceeding in any court over which he presides, such suit, prosecution or proceeding shall be tried and heard before the president judge residing nearest the place of such trial who shall be disinterested.” This act was quite elaborately considered in the case of Com. ex rel. v. White, 161 Pa. 576; but the precise question raised in that case was not the same as the question raised in this case. There the president judge of Indiana county, being the only judge in the district, was a party to a suit. He filed of record an order certifying the cause to be heard by the president judge of Butler county. To his answer to the petition for mandamus to compel him to certify the cause to the nearest president judge, the relators filed a replication and exceptions to the effect that the judge of Butler county was not the judge pointed out by the act of assembly as the one to whom the cause should be referred. This view was sustained by the Supreme Court and it was held that, in designating the judge before whom the cause should be tried, the respondent was bound by the plain terms of the act of 1856. The question, whether the cause could have been tried before an additional law judge of Indiana county, did not and could not arise in that case, because there was no such judge. The necessity of certifying the cause to an outside judge was, therefore, imperative, and, upon a review of the act of 1856, the Act of April 2, 1860, P. L. 552, and the supplement of May 1, 1861, P. L. 494, the conclusion was reached that no discretion was left in the ineligible judge to select the judge before whom his case should be tried. Upon this subject Mr. Justice Mitchell said: “But where the president judge is a party it is in every way desirable, if for no other reason for the avoidance of any personal questions or feeling such as have unfortunately arisen in this case, that nothing should be left to the choice or discretion of the interested judge, but that the law should point out, by a fixed and mandatory rule, the judge to whom the case should be committed for trial.” In the present case it was not necessary, in order to a trial before a competent and disinterested judge, that the president judge should take any action whatever. By the Act of April 9, 1874, P. L. 54, and the Act of August '7, 1883,' P. L. (1885) 323, designating the judicial districts of the commonwealth, the fourteenth district was comprised of the county of Fayette, to which the county of Greene was attached, and was entitled to one judge learned in the law. By the Act of June 15, 1887, P: L. 404, the office of additional law judge in this district was created, and it was declared that he shall possess the same qualifications which are required by the constitution and the laws fbr the president- judge, shall be commissioned by the governor and hold his office by the same tenure as other judges of courts of record required to be learned in the law and for the same term as the president judge, and shall have “the same authority and jurisdiction in term time and in vacation in the several courts of the said district and be subject to the same duties, provisions and penalties as the president judge thereof .... and shall have the same power and authority to hold special and adjourned courts in his own or other judicial districts as president judges have by existing laws.” Section 4 reads: “Each of the judges of the said fourteenth judicial disr trict shall have equal jurisdiction in the civil and criminal courts of the said district; and any one of said judges shall have full power and authority to make all such orders and decrees and render all such judgments as he shall consider just and equitable, in all cases within the jurisdiction of the several courts of the said district, or within the jurisdiction of the president judge thereof.” By the Act of June 12, 1895, P. L. 190, designating the several judicial districts of the commonwealth, it was provided that the fourteenth district shall be comprised of the county of Fayette alone and shall have two judges learned in the law; and sec. 7 provided that in all districts in which by the provisions of this act two judges are provided one of them shall be the president judge and the other the additional law judge. With regard to the powers and duties of the additional law judge, the same section expressly provides as follows: “The said additional law judge shall possess the same qualifications which are required by the constitution and laws for the president judge of said district and shall hold his office for a like term and by the same tenure, and shall have the same powers, authority and jurisdiction, and shall be subject to the same duties, restrictions and penalties .... as the president judge of said district.” Section 7 of the Act of July 18, 1901, P. L. 669, is a verbatim copy of sec. 7 of the act of 1895 ■to which we have referred. The contention of appellants’ counsel, that the titles to the acts of 1874, 1883, 1895 and 1901 are insufficient to give notice of the general scope of the acts, particularly as to the election and powers of additional law judges, has been given due consideration by us and is not sustained. Besides that, there can be no question as to the constitutionality of the act of 1887 creating the office of additional law judge in the fourteenth judicial district, which, so far as it relates to the powers and jurisdiction of such judge, is the same in substance, although not altogether the same in words, as the acts of 1895 and 1901. We have then a cáse where the jurisdiction of the court is undoubted and where the judge who presided at the' trial was one of the commissioned judges of that court, possessed all of the qualifications required by the constitution and laws of the commonwealth and was disinterested. It is not the case of calling in an outside judge, and we are not convinced that in such a case the act of 1856, when construed in connection with the subsequent legislation to which we have referred, was operative to debar this judge of the court from exercising his judicial functions in the case. There is no more reason for calling in an outside judge in such a case than there would be for calling in an outside judge to try a case to which the additional law judge was a party, and in which the president judge had no disqualifying interest or relationship to the parties. But the president judge undoubtedly would have the power to try such a case as we have last supposed, and, if by construction we reach the conclusion that the additional law judge has not the power to try such a case as we have in hand, then we deny to him the same powers and jurisdiction as the president judge, in the face of the express legislative declaration that he shall have the same powers and jurisdiction. We are of opinion that such conclusion would be contrary to the true intent of the statutes bearing upon the question, and, therefore, the first assignment is overruled.

Preliminarily to a discussion of the questions raised by the assignments of error to rulings upon offers of evidence, it is important to determine whether the account filed by the respondent conforms to the requirements of the act of 1906. The account embraced two classes of items, (1) expenditures made by the respondent personally, (2) pay- ■' ments made by him to certain individuals of certain sums of money “for expenditure in my behalf under the 1st, 2d, 6th, 7th and 8th Ps. of Sec. 4, Act Mar. 5, 1906.” There are twelve items of the latter class, showing payments to five different persons, aggregating $3,670, and these give no further information as to the purposes for which the money was actually expended than is indicated' by the words and figures above quoted. The receipts given by the persons to whom the respondent paid the money are equally indefinite. The plain import of the account is that these sums of money were paid to these five persons, not as compensation for their services in disseminating information to the public or in acting as watchers or the like, but to be expended by them in the respondent’s behalf for some or all of the purposes mentioned in these paragraphs of the act, or to reimburse them for payments made by them to others in his behalf for these purposes. These persons did not constitute a political committee by whom or by whose treasurer an account was to be or could be filed; they were merely respondent’s agents or representatives. Although the candidate for nomination may make expenditures for lawful purposes through an agent, “it is still he that acts, and when he accounts he must account for all that he has done:” Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom and the purpose for which the agent paid the money, is not such “a full, true and detailed account” as the act plainly contemplates. Speaking of this subject, our Brother Head said, in the case last cited: “ In the act now before us the legislative command is that the account shall be ‘full, true and detailed,’ and shall disclose the information specified in the language we have already quoted. In the narrowest sense of the word, an account might be true which was neither full nor detailed, which contained but a single item showing the payment of a large sum, in bulk, to some person, but which in no sense exhibited the information demanded by the law. True in fact as to what it actually did disclose, but untrue, false within the meaning of the act, in its failure to obey the mandate of the law, and account for that money in the manner and to the extent required by the lawmaker.” Viewing the account in the light of this construction of the requirements of the statute, we must conclude that the learned judge erred in his findings embraced in the sixteenth and seventeenth assignments of error, wherein he held that the account is true in that it contains a statement of all moneys expended by the respondent in connection with his nomination.

To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally or by his agent, for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; and, moreover, the account must be accompanied by vouchers for all sums expended exceeding $10.00 in amount. Filing the receipts of his agents for the money placed by him in their hands does not fully meet the requirements of the act. No reason is suggested in the respondent’s account for the omission to set forth in the manner above indicated a detailed statement of the disbursements made by his agents, nor does it appear by his testimony that it would have been impossible for him to do so. Unless these facts can be developed on the audit, one of the manifest purposes of the act can be easily defeated by the omission to give the information in the account itself. Before concluding that the act is so ineffective, it will be well to notice some of its provisions relative to the scope of inquiry permissible on the audit. At the date fixed therefor the person by whom the account has been filed is “required to be present in person, to vouch his account, and answer, on oath or affirmation, all such relevant questions concerning the same as may be put to him by the petitioners or their counsel.” ' Subpoenas may be issued “to all parties whom the petitioners or the accountant may require to give evidence concerning such account,” and sec. 12 provides: “No person shall be excused from answering any question, in any proceeding under this act, on the ground that such answer would tend to incriminate him; but no such answer shall be used as evidence against such person in any criminal action or prosecution whatever, except in an action for perjury in giving such testimony.” If upon the audit the court shall decide “that the account was false in any substantial manner, or that any illegal election expenses were incurred, the costs of said audit shall be paid' by the accountant; but, otherwise, by the petitioners.” So, also, if the court shall decide “that any person, whether a candidate or not, has incurred illegal election expenses, or has otherwise violated any of the provisions of the act, it shall certify its decision to the district attorney of the county in which such person may reside, and it shall thereupon be the duty of such district attorney to institute criminal proceedings against such person.” It is thus seen that the scope of the audit of the account of a candidate for nomination is very broad, and, as pointed out in the case cited, the provisions of the act in this regard, being remedial, are to be given liberal construction. Granting that the ultimate object of the audit is to ascertain whether any illegal election expenses were incurred by the candidate, there is necessarily involved in that inquiry, particularly if the account itself does not show the facts, the ascertainment of the amount of each disbursement made by him and of each disbursement made by his agents of the money placed in their hands, the person to whom paid and the object for which the same was disbursed. As the purpose of requiring an account, to adopt the words of our Brother Head, is “to compel the candidate to place upon the public records such clear and detailed information, as would enable the people to determine, after an inspection of his account with the accompanying vouchers, whether he had obeyed or violated the mandates of the law in which they were so vitally interested,” so, also, one purpose of the audit of such an imperfect account as this is to ascertain the facts which are not, but should have been, set forth therein. All of the questions put to the witnesses S. E. Frock and B. F. Sterling (these being persons to whom the accountant paid money for disbursement in his behalf or to reimburse them for expenditures made in his behalf), which are quoted in the third, fourth, fifth, sixth, seventh, eighth and ninth assignments of error, were relevant to the purpose of the audit last referred to. For example, the petitioners proposed to ask the witness Frock'to give a detailed statement of the manner in which he expended the $1,050 which the account shows was placed in his hand. The stated, purposes of this offer were, (1) to show the details which the act requires, (2) to ascertain whether or not the statement made in the receipt that it was spent under the. act of 1906 was or was not correct. The objections to this offer were sustained, and as they show quite plainly the theory upon which all similar offers were objected to and rejected, we quote them as they were stated by counsel: “Objected to for the reason that if the expenditures were lawful it is' immaterial, and if they were not lawful there is no evidence yet offered showing that such expenditures were made with the knowledge or consent of the candidate, and generally as incompetent and irrelevant.” This theory is entirely inconsistent with the conclusions heretofore stated in this opinion. These witnesses, from whom the petitioners sought to obtain information which ought to have been furnished in the account, were the respondent’s agents. It is not to be presumed that the petitioners knew how, to whom and for what purposes they had .disbursed all the money. Moreover, as we have endeavored to show, the relevancy of the evidence they tried to bring out by examination of these witnesses did not depend on proof that the money was spent for illegal purposes. The account did not show in detail how it was spent. “As it did not the audit was made necessary in order that the all-important fact might appear:” Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292. Therefore, the general rule that the order of evidence is within the discretion of the trial court has no application to those assignments. For both of the reasons last suggested, the petitioners should not have been required to prove in advance, or to make a distinct and positive offer to prove afterwards, that the respondent’s money had been disbursed by these agents'for illegal purposes, with the respondent’s knowledge and consent. That inquiry would arise when the facts which the account ought to have disclosed were developed. As already suggested, to hold that the petitioners could only inquire of these agents as to the expenditures of the money placed in their hands which the petitioners were able to prove were made for illegal purposes, would be to put a construction' on the act which would defeat one of its plain and salutary objects.

It is urged that the rulings complained of in these assignments were in accordance with our decision in the Bechtel case. This position is not sustained by anything that was said by this court in the opinion in that case, and the tenor of the opinion as a whole is clearly opposed to it. But much stress is laid on the fact that we overruled the fourth assignment in that case, and this is urged as a complete vindication of the rulings under consideration here. We cannot agree with the learned judge and the counsel for the appellee in this contention, and a brief review of the facts and considerations which led to the conclusion that that assignment did not contain reversible error will show that the ruling falls far short of sustaining their position in the present case. In the account filed by the respondent in that case appeared this item: “ J. H. Nichter as per receipt $700.” The receipt appears at ■page 293 of the report of the case. Nichter was called by the petitioners and was examined fully by their counsel as to the dates when he received the money from the respondent and as to his expenditure of it. He also produced receipts, which were offered in evidence, showing the persons to whom and purpose for which he had paid it. His examination upon the subject as to how he had spent the $700 was quite full and was not hampered by such objections as were raised in the present case to the examination of the respondent’s agents. Then came the question which was objected to, namely, “Did you furnish any liquor during the campaign in the interests of H. 0. Bechtel?” This question on its face was not an inquiry as to how he had expended the $700, but was so worded as to cover expenditures that he may have made on his own account for the purposes mentioned. Nor was the question accompanied by a distinct and unequivocal offer to connect the respondent with the expenditure. Indeed, the answer of counsel for the petitioners to the question of the court, while not very clear, tended to show that they could not connect the respondent with it. Upon a full view of the course of the examination of the witness Nichter and the somewhat indefinite and ambiguous character of the question put to him, we were not convinced that the assignment contained reversible error. In order, however, that this ruling may not be misunderstood hereafter, as it apparently was upon the present audit, we remark that if the petitioners’ counsel had asked Nichter the direct question whether he had used any part of the money placed in his hands in purchasing liquors to be given to voters, or whether he had furnished liquors to voters with the knowledge and consent of the respondent, or if objection had been made to the questions requiring the witness to give a detailed statement of the persons to whom and the purposes for which he had paid the $700, and the court had, in either of these instances, sustained the objection, a different question would have been raised by the assignment of error and a different ruling ought to have been, and would have been, made thereon. Comment is also made upon our ruling upon the seventh assignment of error in that case. But there, also, the question put to the witness McGinty was ambiguous; it was not in terms or in effect a question whether the witness had furnished liquors to voters, with the knowledge or consent of the candidate. It is plainly distinguishable from the question the rejection of which is the subject of the twelfth assignment of error. The third, fourth, fifth, sixth, seventh, eighth, ninth and twelfth assignments are sustained.

The offer in the second assignment of error was to prove by the witness Bell “that part of the money received by Mr. Frock from the accountant was expended by him in the purchase of this man’s vote, to be followed by further testimony that such practice and means of getting votes was known to and consented to by the accountant.” And further on the offer was supplemented by proposing to follow it “by other evidence that this act was with the knowledge and consent of the accountant.” ' There are two aspects in which this offer may be considered. If it had been merely to prove by this witness, who was a stranger to the respondent, that Frock used money in the purchase of votes, without any allegation that it was the respondent’s money or that it was used for this purpose with the respondent’s knowledge or consent, the relevancy of the offer at the time it was made would not have been apparent. But, being accompanied by an offer to follow it by evidence of the respondent’s consent, it would have been proper for the court to have received the evidence upon the presumption that the offer of counsel, that they would follow it by other evidence of the respondent’s knowledge and consent, was made in good faith. If they failed to make good their offer the court could have struck out or disregarded the testimony adduced in answer to their questions. But it must be conceded that where the relevancy of an offer of evidence depends upon proof of other facts the trial court has discretionary power, in ordinary cases, to say that proof of these other facts shall precede the admission of the offered evidence, and that, unless this discretion be plainly ¿bused, the appellate court will not reverse. The other aspect in which the offer should be considered includes the proposition that the money used by Frock was part of the money which had been placed in his hands by the respondent to be used in the latter’s behalf. In this aspect the purpose of the offer was to show how the money had been expended; and for this purpose the evidence was relevant, as we have endeavored to show.in the consideration of the provisions of the statute relative to the scope and purpose of the audit. Of course, we do not mean to be understood as deciding that the candidate would be responsible for the betrayal of the trust reposed by him in his agent. But as the purpose of the statute is to secure publicity as to the persons to whom and the purposes for which the money supplied by the candidate to secure his election has been paid, it is highly important that a wider latitude should be given in the investigation than would be permissible'in a criminal prosecution against the candidate for a violation of the election laws relative to the expenditure of money. We are of opinion that the offer should have been admitted. Therefore this assignment is sustained;

The respondent was represented at the audit by counsel. They^ made the objections which we have been considering undoubtedly in good faith and in the exercise of. their judgment as counsel. It was not competent upon cross-examination of the respondent to inquire as to his motives in permitting his counsel to raise the objections which they deemed proper. The tenth assignment is therefore overruled.

We cannot see that reversible error was committed in the rejection of the question which is the subject of the eleventh assignment. The fact that the respondent had not obtained itemized accounts of these expenditures, unaccompanied by any explanation of the fact, was in the case for the purposes of such legitimate argument as it would tend to support.

In overruling the fifteenth assignment, we are not to be understood as holding that the influencing or attempting to influence voters by the gift of liquors or cigars is any less illegal than the attempt to influence them by the gift of money or other valuable thing. Under the testimony of the respondent, and the court’s finding of fact based thereon, the item, “Markle’s Drug Store for one box of cigars $3.00,” was not an election expense within the meaning of the act, and need not have been included in his account. He was not estopped, by the fact that he included it in his account, from showing that the use of the cigars was but the common courtesy which men extend to friends, without any thought on his part or their part that the latter were to be influenced in their votes thereby. See Kinney’s Election Expenses, 39 Pa. Superior Ct. 195. This assignment is overruled.

We cannot say that the findings embraced in the thirteenth and fourteenth assignments are not in accordance with the evidence presented. The fundamental error is that offers of relevant and material evidence were excluded.

The judgment is reversed at the costs of the appellee, and the record is remitted to the court below for further hearing, proceeding and decision according to law.


text:
    Monongahela Natural Gas Company, Appellant, v. Ellwood Natural Gas & Oil Company.

      Appeals — Assignments of error — Order of the lower court — Exception.
    1. On an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, the order of the court below should be set forth in the assignment of error, and not merely counsel’s summary of what the court did.
    2. No appeal can be taken from an order discharging a rule for judgment for want of a sufficient affidavit of defense, unless an exception has been taken by the plaintiff to such order. Such an exception must be taken'within a reasonable'time, and if no exception has been taken until after the expiration of three years and after a trial, the appellate court will not consider the assignment of error.

      Contract — Natural gas — Minimum consumption.

    3. Where one natural gas company agrees in writing to sell to another natural gas company gas at the rate of ten cents per 1,000 cubic feet, and the contract provides that “the above price is made on the minimum consumption of ten million cubic feet per month,” the contract as properly construed entirely fails to fix a price for the gas, if the amount delivered is less than 10,000,000 cubic feet per month. In such a case the supplying company is not entitled to recover $1,000 for a month in which it supplied only 500,000 cubic feet.- All that it is entitled to, at the most, is the market value of the quantity actually delivered.
    July 20, 1910:
    Argued April 19, 1910.
    Appeal, No. 180, April T., 1910, by plaintiff, from order of C. P. Fayette Co., Dec. T., 1906, No. 334, discharging rule for judgment for want of a sufficient affidavit of defense, and from judgment on the verdict in case of Monongahela Natural Gas Company v. Ellwood Natural Gas & Oil Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for gas. Before Umbel, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1) the action of the court in discharging the rule for judgment, and (2-7) portions of charge.

      J. G. Carroll, for appellant.

      W. J. Sturgis, with him iff. A. Cottom, for appellee.
   Opinion by

Morrison, J.,

The controversy in this case is over the construction of a contract entered into between the parties on May 30, 1905, as follows:

“The Monongahela Natural Gas Co. agrees to supply the said Ellwood Natural Gas & Oil Co., with gas through meter from a (6 inch) six inch connection from its main line in Centreville Borough, Washington County, Penna., for a period of One (1) day (this agreement shall continue in force after the expiration of the term named until either party gives one days notice to terminate same, at the expiration of which time this agreement shall cease), at the price or rate of Ten (10c.) Cents per thousand cubic feet on a six ounce basis; payable monthly at the principal office of the Monongahela Natural Gas Co., South Side, Pittsburgh, Pa.; payment for each calender month’s' supply shall be paid within the first fifteen days of the succeeding month.

“The above price is made on a minimum consumption of Ten (10,000,000 cu. ft.) Million cubic feet per month.

“The Monongahela Natural Gas Company shall maintain its main or connection to its meter, and shall place on the premises and keep in order a recording gauge to keep a record of the pressure, the same to be averaged and the amount consumed to be computed from said recording gauge.”

It is conceded that this contract was duly executed and delivered.

The plaintiff’s declaration avers that the actual consumption of gas by the defendant for the month of January and the first ten days of February, 1906, was 529,855.9 .cubic feet. But on the following sentence in the contract, to wit, “the above price is made on a minimum consumption of 10,000,000 cubic feet per month,” the plaintiff claimed $1,000 for the month of January and $333.33 for the first ten days of February, although the gas actually delivered by the plaintiff to the defendant at ten cents per thousand cubic feet only amounted to $140.73. The defendant having filed an affidavit of defense in which it admitted the above amount, with interest thereon, to be due the plaintiff, and denying any liability for any greater sum, the plaintiff’s counsel entered a rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defense. On argument of the rule, the learned court below held that defendant was liable only for the actual amount of gas consumed and directed judgment to be entered in favor of the plaintiff for the sum of $150.35, with the right to plaintiff to proceed for the remainder of its claim. The above sum was made up of the price of the gas actually consumed and interest thereon. The plaintiff’s counsel receipted to the defendant for the above judgment, interest and costs and declared the plaintiff’s intention to proceed to trial for the balance of the original claim. The case was finally tried before the court and a jury and on January 21, 1908, the jury returned a verdict for the defendant. After a motion for a new trial had been argued, the court, on May 19, 1908, refused to grant a new trial and directed that judgment be entered on the verdict on payment of the jury fee, and on March 21, 1910, judgment was so entered. •

The first assignment of error is as follows: “The court erred in its order of May 7, 1907, in directing judgment to be entered in favor of the plaintiff and against the defendant for $150.35, and in not directing judgment to be entered in favor of the plaintiff and against the defendant for the full amount of plaintiff’s claim, for want of a sufficient affidavit of defense. (See Appendix, page 48, for order, and Appendix, page 41, for exhibit £A’ of plaintiff’s statement, being the written contract upon which this suit was brought.)” The first defect in this assignment is that it does not set forth the order of the. court but simply gives the counsel’s summary or conclusion of what the court did. We think this assignment is in conflict with our rules. But in addition to that, under the Act of April 18, 1874, P. L. 64, the right to an appeal'from an order discharging a rule for judgment for want of a sufficient affidavit of defense rests on an exception to be taken by the plaintiff to such order. In this case the order was made May 7,1907, and no exception was taken to it until March 23, 1910. It has been decided that if the plaintiff’s counsel is present when such an order is made, he should have his exception noted at once, otherwise it should be done within a reasonable time: Titusville Bldg. & Loan Assn. v. McCombs, 92 Pa. 364; Patterson v. Roberts, 109 Pa. 42. In Com. v. Fleming, 157 Pa. 644, the Supreme Court said: “When a rule for judgment for want of a sufficient affidavit of defense is discharged in open court in the presence of the plaintiff’s counsel, then is the proper time to except and request the court to seal a bill. If counsel are not in court when such rule is discharged, no judge should refuse to allow an exception and seal a bill within a reasonable time thereafter.”

In the present case the record shows that instead of excepting to the order of the court in refusing to grant judgment for the full amount of plaintiff’s claim, the counsel elected to go to trial for the balance of his claim, and the case was subsequently tried before a jury and on September 5, 1907, the jury was discharged because of a disagreement and the case was continued, and thereafter the case was again tried before a jury and a verdict rendered for the defendant on January 23, 1908, and the judgment thereon entered on March 21, 1910, and no exception was taken to the order of May 7, 1907, until March 23, 1910, about three years after the order was made and two days after the final judgment was entered on the verdict. It thus appearing that plaintiff’s counsel was repeatedly in court engaged in conducting the case between the date of the order complained of in the first assignment and the entry of the final judgment, and not asking for an exception until after the final judgment, we think the exception was not taken within a reasonable time and it. ought not now to be considered. We reach this conclusion without passing upon the question raised by counsel for the defendant that the plaintiff was bound to have taken his appeal from the order of May 7, 1907, within six months from that date.

It will be noted that that order granted judgment for $150.35, being the amount of plaintiff’s claim with interest admitted to be due, and that the plaintiff was allowed to proceed as to the balance of its claim. While it is not necessary now to decide the point, it may be contended that said order was interlocutory and that if the plaintiff had excepted to it within a reasonable time it might have been appealed from after final judgment. But upon the record as it stands we hold that the exception was not taken within a reasonable time and it cannot be considered.

The remaining specifications of error bear on the construction of the contract. We quite agree with the court below on the construction in the charge as quoted in the third specification. If the learned court had adhered to that construction, it would have required a binding, instruction to the jury in favor of the defendant. We do not think the contract permitted the plaintiff to collect for any more gas than it actually delivered. If the defendant had taken the minimum quantity, or more, named in the contract, the price would have been ten cents per 1,000 cubic feet. Not having taken that quantity of gas, the plaintiff was entitled to collect the market value of the quantity actually delivered to the defendant. But the learned counsel for the plaintiff utterly repudiated this construction and insisted all through the trial on his right to collect for 10,000,000 cubic feet per month at ten cents per 1,000 cubic feet. This we think was not warranted by the contract. We do not agree with the court below that the contract was ambiguous and that it was proper to submit its meaning to the jury under oral testimony. Our construction of the contract is that it entirely failed to fix a price for the gas, if the amount delivered by the plaintiff was less than 10,000,000 cubic feet a month. We here remark that if the first specification rested on an exception taken in due time we would not have reversed the final judgment on that specification, because the order of May 2, 1907, granted judgment only for the amount admitted to be due and saved to the plaintiff the right to go to trial for the balance of its claim, and the plaintiff did not except to said order and appeal but went to trial, and if the gas actually delivered was worth more than ten cents per 1,000 cubic feet, such excess might have been proved and recovered for at the final trial.

The view we take of the case leads us to overrule the remaining specifications of error.

On the theory of the contract on which the plaintiff’s counsel undertook to recover, the court ought to have ruled, as a matter of law, in favor of the defendant: Fox v. Foster, 4 Pa. 119; Zentmyer v. Mittower, 5 Pa. 403; Brown v. Nickle, 6 Pa. 390; Meckley’s Est., 20 Pa. 478; Cochran v. Pew et al., 159 Pa. 184. But the result of the trial was a verdict in favor of the defendant and it is not complaining of the final judgment thereon.

Judgment affirmed.


author: Per Curiam,

text:
    Dilworth Coal Company, Appellant, v. Kidney.

      Equity — Equity pleading — Demurrer.
    1. A demurrer necessarily admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded, but it does not admit the conclusions of law drawn therefrom, although they are also alleged in the bill.
    2. Where a bill in equity to restrain proceedings at law, avers that such proceedings “are defective, null and void as against plaintiff,” a demurrer to the bill does not admit the truth of such averment.
    3. A bill in equity to enjoin proceedings at law before a justice of the peace will be dismissed where it appears that the justice had jurisdiction of the parties, the cause of action, and had proceeded in the mode prescribed by law and that the defendant had a full and adequate remedy of which he had not availed himself.
    Argued April 28, 1910.
    Appeal, No. 172, April T., 1910, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 6, dismissing bill in equity in case of the Dilworth Coal Company v. John W. Kidney.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to enforce proceedings at law.

      The court filed the following opinion:
    This is a bill in equity wherein the plaintiff prays that a certain judgment entered by and before an alderman and ex officio justice of the peace be declared null and the defendant be restrained and enjoined from issuing an execution thereon. To which bill of complaint the defendant demurs.
    From the pleading the following facts appear:
    1. On December 7, 1907, summons in assumpsit was issued by James V.' McMasters, an alderman and ex officio justice of the peace, in a certain cause wherein John W. Kidney, defendant herein, was plaintiff, and the “Dilworth Coal Company” was defendant. The summons was returnable December 14, between the hours of 10 a. m. and 11 a. m., and was served December 7 on “R. M. Mackenzie, treasurer of defendant company, personally,” and thereafter, December 14, 1907, judgment was entered “against the defendant” by default.
    2. On January 13, 1908, the Dilworth Coal Company presented its petition to the alderman for a rehearing, and on February 29, a rehearing was refused, whereupon the Dilworth Coal Company caused a writ of certiorari to be issued and the proceedings removed to the court of common pleas at No. 49, June Term, 1908. On May 28, 1908, the judgment of the alderman was affirmed.
    3. At the time of service of the summons R. M. Mackenzie was the treasurer of the Dilworth Coal Company.
    The plaintiff alleges that the judgment is null and void and prays relief for reasons of which the first and second may be considered togethei’, and are as follows:
    1. That R. M. Mackenzie, at the time of the service was ill, about to depart for and was confined to his home for several weeks; and the first notice the other officers and employees of the corporation had of said suit was when the levy was made, January 11, 1908.
    2. That the Dilworth Coal Company had a just and legal defense to the claim of John W. Kidney.
    It is admitted that service was had upon the treasurer of the company, and that the hearing was held at the time and place designated in the summons. It is also admitted that execution was issued January 2, and levy made January 11, 1908.
    The plaintiff in the bill was in default from the beginning, did not appear at the hearing nor enter any defense, nor did the company appeal from the judgment or sue out a writ of certiorari. They are not, therefore, entitled to come into a court of equity to relieve themselves from the consequences of their neglect to avail themselves of their legal remedy: Rockwell v. Tupper, 7 Pa. Superior Ct. 174.
    Where a party has been heard, or had had the opportunity to be heard in a court of law, even though his claim be an equitable one, he cannot be heard on a bill, neither can he thus cure a mistake in the trial of an action at law or a neglect to appeal in time: Haneman v. Pile, 161 Pa. 599.
    Nor can “irreparable damages be-alleged against statutory remedies legally pursued:” Brown’s App., 66 Pa. 155.
    Defendant presented a petition to the alderman praying that the judgment be opened and he allowed a hearing. The petition being refused, plaintiff issued a writ of certiorari, and “the fact that he selects a form of procedure which a higher court cannot review constitutes no reason why he shall not be concluded by the decision:” Frauenthal’s App., 100 Pa. 290.
    The defense alleged — paragraph 2 of the bill — may be a full and legal defense yet it is a defense which the defendant in the judgment should have set up before the alderman.
    The third reason alleges that the record does not disclose whether defendant is a corporation or a partnership.
    While the practice is to aver corporate existence, yet no decision of the courts of this state has been cited holding that a judgment against a corporation is void for lack of such averment.

      There is a mass of authority more or less definite to the effect that in an action by or against a corporation it is not necessary to allege that the plaintiff or defendant is a corporation. These decisions proceed on the ground that where the plaintiff or defendant is described in the complaint by a name which naturally imports a corporation, that is a sufficient allegation of the fact until it is controverted, and that the use of a name such as is usually adopted by a corporation, and not containing the name of an individual, as is customary in the case of simple partnerships, indicates prima facie at least corporate existence: Machen on Law of Corporations, sec. 465, citing Ft. Wayne Gas Co. v. Nieman, 33 Ind. App. 178. Where the name of a corporation is set forth in full, it is not necessary to allege that it is a corporation: Snyder v. Philadelphia Co., 54 W. Va. 149.
    The Act of June 24, 1885, P. L. 149, sec. 1, provides that in every suit or judicial proceeding .... to which a corporation is a party the existence of such corporation shall be taken to be admitted, unless it is put in issue by the pleadings. Held, that the existence of the defendant as a corporation is to be assumed, unless it is put in issue. by the pleadings: Barton v. National Express Co., 9 Kulp, 212; Pennsylvania Knitting Co. v. Mfg. Co., 21 Pa. C. C. Rep. 537.
    In Zion Church v. St. Peter's Church, 5 W. & S. 215, it was held that in an action by a corporation an averment of corporate existence is not necessary. “The name .... imports that defendant is a body politic, and had the fact been otherwise, the defendant might have pleaded .... in abatement or perhaps more properly at bar.”
    McConnell v. Apollo Savings Bank, 146 Pa. 79, relied upon by plaintiff, was an action against the “Apollo Savings Bank, a corporation under the laws of the state of Pennsylvania.” On trial, at motion of plaintiff, the record was amended by striking out the words “an incorporation under the laws of Pennsylvania.' ’ The amendment was allowed, and the case stood against the Apollo Savings Bank. The defendant bank was not an incorporated association. It was held that there was nothing upon the record to show the character of the institution or the names of the persons composing it, if it be a partnership or a private banking institution. If the latter there is no defendant on the record. A suit against a firm must set out the names of the individuals composing the firm.
    July 20, 1910:
    In this case the name Dilworth Coal Company imports that it is a corporation, nor is there a question as to the identity of the defendant company, nor that service was not had on its treasurer; nor that the claim sought to be recovered arose out of certain alleged contractual relations between the plaintiff, John W. Kidney, and the defendant company; nor is it averred that the property of the Dilworth Coal Company is being taken in execution upon a judgment not against the company.
    The alderman had jurisdiction of the parties and the cause of action and proceeded in the mode prescribed by law. For the correction of any error in law or fact, the defendant company had a full and adequate remedy, and having neglected to avail himself of that remedy, is not entitled to relief in equity.
    The demurrer is sustained and the bill dismissed at the costs of the plaintiff.

      Error assigned was decree dismissing the bill.

      Lowrie C. Barton, for appellant.

      Elmer L. Kidney, for appellee.
   Per Curiam,

This was a bill in equity to restrain proceedings at law. The proceedings were fully set forth in the bill and coupled with the averment of them was the averment that the proceedings “as before set out are defective, null and void as against plaintiff.” It is seriously contended that by demurring the defendant admitted the truth of this averment and that, therefore, the demurrer should have been dismissed. This argument ignores the well-settled principle that a demurrer necessarily admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded, but it does not admit the conclusions of law drawn therefrom, although they are also alleged in the bill: Story’s Equity Pleading, sec. 452. We deem it unnecessary to add anything further to the clear and satisfactory opinion of the learned judge of the common pleas in support of the decree.

The decree is affirmed at the costs of the appellant.