text:
    State Hospital for Insane v. Danville & Mahoning Poor District, Appellant.

      Poor laws — Indigent insane — Liability of poor district to state hospital for insane — Estate of lunatic — Lunacy—Insanity.
    A poor district sent an indigent insane person to a state hospital for the insane, and agreed to pay the. hospital $1.75 per week for her maintenance. This amount was paid to the time of the lunatic’s death. The state hospital also received $2.00 per week from the state on account of the patient. The minimum charge for private cases was $4.00 per week. After the death of the lunatic, it appeared that she had an estate. It also appeared that the justice of the peace who signed the order of relief waá the agent of the estate, and was also the treasurer of the poor district. He paid into the treasury of the district from the income of the estate the weekly amount which the district paid to the hospital. It did not appear that the overseers of the poor knew anything of this arrangement. The hospital claimed' to recover from the poor district the difference between $4.00 per week and $1.75 per week for the time during which the lunatic had been an inmate of the hospital. Held, that the hospital was not entitled to recover anything from the poor district.
    Argued March 2, 1908.
    Appeal, No. 50, March T., 1908, by defendant, from judgment of C. P. Montour Co., May T., 1907, No. 48, for plaintiff on trial by the court without a jury in case of Trustees of State Hospital for Insane at Danville, Pa., v. Danville & Mahoning Poor District.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ. '
    Reversed.
    Assumpsit for the board of lunatic.
    The case was tried by Evans, P. J., without a jury.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff in the sum of $100.80.

      April 20, 1908:

      Wm. Kase West, for appellant. —
    Under the law, the trustees have a right to fix the. amount to be paid for insane patients, and did accept Catherine Hahn from the said poor district and fixed the price at $1.75 per week, are bound by the contract and are not entitled to recover in this action.
    Under the act of 1889 all that any poor district is liable for, that commits any of its charges to a hospital, is the sum of $1.75 per week, even though it should afterwards appear that the pauper had property or became heir to the same: Danville State Hospital v. Poor Overseers, 163 Pa. 175; Com. v. Tait, 14 Pa. Dist. Rep. 264; Lower Augusta Twp. v. Northumberland County, 37 Pa. 143; Wertz v. Blair County, 66 Pa. 18.

      R. Scott Ammerman, for appellee,
    cited: Directors of the Poor, etc., v. Nyce, 161 Pa. 82; Danville State Hospital v. Poor Overseers, 163 Pa. 175; Brush Valley Twp. Poor Directors v. Allegheny County Poor Directors, 25 Pa. Superior Ct. 595; Edenburg Borough Poor Dist. v. Poor Dist. of Strattanville Borough, 5 Pa. Superior Ct. 516.
   Opinion by

Beaver, J.,

The record in this case raises no question as to the standing of the parties to the suit. The case was tried before the court without a jury, and it is admitted upon the record that both plaintiff and defendant are corporations, or at least quasi corporations, capable of suing and being sued.

The court, in its opinion discharging the exceptions, states as a fact that "Under the Act of April 15, 1869, P. L. 1042, the order of relief offered in evidence appears to be good and valid, so far as an order of relief is concerned.”

Assuming this to be so, the defendants, under a regular order of relief, undertook the care and custody of an indigent person within their jurisdiction. Finding that person to be insane, upon the regular certificate of two physicians, they committed her to the Hospital for the Insane at Danville, and entered into a bond conditioned for the payment of $1.75 per week for her maintenance. This amount was paid to the time of her death and was received and receipted for by the hospital authorities.

It is testified by the superintendent of the hospital: “Q. Doctor, you are the superintendent of the Hospital for the Insane at Danville, Pa.? A. Yes, sir. Q. It has been admitted in this case that Catherine Hahn was committed to your charge and care by the overseers of the Danville & Mahoning Poor District; that is true? A. That is correct. Q. Doctor, what compensation, if any, have you received from the Danville & Mahoning Poor District on account of the care and maintenance furnished this alleged pauper, Catherine Hahn? A. We were paid the legal rate of $1.75 per week for the time she was in the institution as an indigent case. Q. Whether or not, Doctor, was this charge of $1.75 per week in accordance with the practice of your department? I mean of your institution? A. Ye's, sir. That covers a part of the expense, the state making up the balance of the limit of $2.00 per week. Q. State to the court your reason for making a specific charge of $1.75. A. That is the rate fixed by the legislature. Q. In what cases? A. In all indigent cases.” Subsequently, on cross-examination, after the witness had stated that in private cases the minimum charge is $4.00 per' week, which includes all costs except that of clothing, he was asked: “Q. Did the state pay to your institution the $2.25, the balance of the amount that you claim that it cost you to keep this pauper? A. No, sir. Q. You have not been paid anything toward the support of this pauper up there, except by the Danville & Mahoning Poor District? A. Yes, sir. Q. Plow? A. Through the state. The amount paid by the state is limited to $2.00 per week and that is practically the amount we received from the state in addition to the $1.75. Q. Under the act of 1889, where the poor board are to pay $1.75 and not to pay $2.00, which is paid by the state? A. Yes, sir.”

It, therefore, appears that the plaintiff was paid,- in addition to the $1.75 paid by the defendant, the sum of $2.00 per week by the state, which is the amount fixed by the first section of the Act of May 21,1889, P. L. 258. It seems to us, therefore, very clear that, if the defendant were liable for anything, it could only be the difference between $4.00 per week claimed by the plaintiff, as the minimum charge to a private patient, and $3.75 per week which had already been paid — $1.75 by the defendant and $2.00 by the state. There is no allegation here that a recovery is sought for the commonwealth which has-paid $2.00 for the maintenance of the person, for whose support the defendant is sought to be held.

It is to be noted that no fraud is charged in the plaintiff’s statement of claim. It is based upon a contract and sets forth that “The plaintiff’s demand is founded upon the assumption of the defendant to pay the said plaintiff the sum of four dollars per week from the date of commitment of said Catherine Hahn, to wit, from May 1st, 1903, to the 11th day of January, 1904; of which sum defendant has paid plaintiff the sum of sixty-four dollars, leaving due and payable to plaintiff the sum of eighty-two dollars and twenty-eight cents, together with interest thereon from the 11th day of January, a. d. 1904.” It is needless to say that there was no assumption, either express or implied, to pay $4.00 per week.

We are clearly of opinion that, under this statement of claim, the defendant was not liable. Under an order of relief, found by the court to be “good and valid,” the person committed tothe hospital was taken in charge by the overseers of the defendant district, as an indigent person. The order of relief was an adjudication of that fact, if it was good and valid as found by the court, to which there is no exception, nor as to which is there any objection here. It was not necessary for the overseers to make inquiry as to the fact of the poor person being indigent. After the death of the person so committed to the Hospital for the Insane, it was discovered that she had been possessed of certain real estate, which was subsequently sold, and a balance of — say $1,000 was in the hands of the orphans’: court for distribution. The fact in regard to this property is not denied, but that fact imposes no liability upon the defendant.

In order to sustain the contention on the part of the plaintiff that such liability is created, the case of Directors, etc., v. Nyce, 161 Pa. 82, is cited. Nothing in this case, however, sustains such a contention. What is therein decided is that, “Under the Act of June 13, 1836, P. L. 539, an estate acquired by a pauper after he has become a charge on the public is liable for his previous maintenance.” In the opinion of the court below, which is commended in the opinion of Mr. Justice Fell, it is said, referring to the act of 1836: “If this act does not cover the case before us, it is difficult to see the purpose of the enactment. The man who has an estate sufficient to provide for his maintenance at the time he makes application for charity is not in fact a pauper, and the authorities are not obliged to furnish the support. If he gains admission through false statements, his estate is liable, without any statutory provision : Inhabitants of Stow v. Sawyer, 85 Mass. 515.” Whilst this is a clear authority for the proposition that the estate of the poor person is liable, as is undoubtedly the case, it does not in any sense' or in any view of it sustain the contention of the appellee here.

. If this were an action by the plaintiff to recover against the estate of the decedent the difference between the price charged for a private patient and that provided by law for the care of an indigent insane person, the case would be entirely different. Whether or not a recovery could be had for the use of the commonwealth for the amount paid toward the maintenance of the deceased is not now before us and need not be considered.

It appears that the justice of the peace who signed the order of relief was made the agent of the estate of the decedent and was authorized to pay out of the'rents of her real estate the' amount to be paid by the defendant poor district, but it is not alleged, and is certainly not proved, that the overseers of the poor knew anything of this arrangement. It seems to be admitted that this amount was paid into the treasury of the defendant, the justice of the peace who signed the order of relief being also the treasurer of .the poor district. The defendant, therefore, has no claim upon the estate of the decedent and we are clearly of the opinion that the plaintiff has no claim upon the defendant. The fact, as stated by the trial judge in disposing of the case, that “Neither counsel for the plaintiff or defendant presented any requests for findings of facts or conclusions of law in this case,” may have led to the failure to find the facts as fully as the testimony warranted and required.,

Being satisfied, from a full consideration of all the facts which appear in the testimony, that there is no liability upon the part of the defendant to the plaintiff, we feel compelled to reverse the judgment.

Judgment reversed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Harvey, Appellant, v. Dimon.

      Promissory notes — Negotiable instrument — Law merchant — Parol statements — Inducement—Written instrument — Evidence—Affidavit of defense.

    In an action upon a promissory note, where the defendant by oyer and by affidavit of defense makes it appear that the note is only a part of a paper which includes also a memorandum of goods sold and an agreement relating to a collateral warranty of goods, the court will construe the paper as a whole as not a negotiable instrument, and will find that an assignee of the paper takes it subject to the rules of the law merchant.
    In such a case where the paper contains the additional words “no agreement recognized, unless in writing on this sheet,” signed only by a salesman of the payee of the note, and not signed by the maker, the latter is not bound thereby unless it appears that he distinctly assented to the words at the time of the execution of the paper.
    In a suit on the paper the defendant may show that certain representations were made to him by the agent of the payee of the note, who secured his signature, which induced the execution of the agreement, and without which he would not have signed it, and that, in pursuance of such representations, he subsequently orally rescinded it.
    Argued March 3, 1908.
    Appeal, No. 16, Jan. T., 1908, by plaintiff, from order of C. P. Susquehanna Co., Nov. T., 1906, No. 201, discharging rule for judgment for want of a sufficient affidavit of defense in case of Arlington C. Harvey v. J. S. Dimon.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The defendant filed an affidavit of defense which was as follows:
    That on or about April 30, 1906, a party calling himself Charles Stallsmith, called at his house representing himself as the agent of a concern which he represented was the Columbus Food Company, of Columbus, Ohio, and requested deponent to become an agent of the said Columbus Food Company for the sale of certain articles, for the county of Susquehanna.
    That deponent finally consented to act as such agent, if, upon considering the matter he should be of the opinion that he had time to engage in the sale of articles represented to be manufactured by the said Columbus Food Company.
    That he entered into an agreement upon the representations of said Charles Stallsmith to become the agent ;for the sale of said products to pay for the same as the sales should be made; it was then and there agreed that the goods of the said company to be shipped to the said deponent were to be shipped on the June 1,1906, and not before that time.
    That at the request of the said agent he signed an order for such goods as the agent directed, the said party, to wit: the Columbus Food Company, reserving the right to cancel such agreement at any time at their option and asked him to sign an agreement in connection with such order promising to pay to the Columbus Food Company $409.50. That said agent then and there promised and agreed that the time for the payment was to be extended at any time when requested by deponents as to all goods that might remain unsold.
    Later on the same day he met him the said Charles Stallsmith, and told him that he did not believe he would have time to engage in the sale of the Columbus Food Company’s products and it was then and there agreed between deponent and said agent that he could countermand the order given for goods and rescind the contract at any moment that he pleased previous to June 1,1906.
    That on May 1, 1906, he wrote the said Columbus Food Company a letter of which the following is a copy:
    “May 1,1906.
    “ Columbus Food Company,
    “Columbus, Ohio.
    “Gentlemen:
    “You will please consider the agreement entered into between your Company and myself on the 30th day of April, 1906, rescinded and everything in connection therewith revoked.
    “I have no time to give attention to the matter in any way and any order for any goods is also revoked. Do not ship any goods to me.
    “Yours truly,
    (Signed) “J. S. Dimon.” .
    That notwithstanding such rescission of said contract and countérmand of said order on May 1, 1906, the said company shipped to deponent a quantity of goods, the amount and character of which are unknown to said deponent, which said property so forwarded he refused to accept or take from the D., L. •& W. R. R. station, but left the same subject to the order of the said Columbus Food Company as its own property .and so notified the said company on June 7, 1906.
    At the second interview with the said agent, when .it was agreed that deponent could rescind his contract and revoke any orders he had given, together with any obligation, all said papers the agent agreed should be returned to said deponent.
    ' Deponent is not indebted in any way or manner to the said Columbus Food Company or to the said A. C. Harvey. A true copy of instrument upon which suit is brought is hereto .attached.
    ; “TRUE COPY OF INSTRUMENT.
    “Columbus Food Co.,
    , . “ 115 Vine St., Columbus, Ohio.
    “Please ship to J. S. Dimon, Penn.
    “Postoffice, Fairdale, Pá.
    “All goods F. O. B.
    “Columbus, Ohio.
    “Shipping address Montrose by D. L. & W.
    Bales 4-50 lb. Sacks Stock Food, $
    Bales 8-25 lb. Sacks Stock Food, $
    Bales 16-12 lb. Sacks Stock Food, $
    Cases 24r-50c Packages Stock Food, $

      1 Cases 48-25c Packages Poultry Food, $ 6.50
    2 Cases 20-60c Packages Poultry Food, $ 13.00
    Lbs. in 12 lb. Buckets Poultry Food, $
    ■ Lbs. in 25 lb. Buckets Poultry Food, $ ■
    Cases 48-25c Packages Animal Condiment, $
    Cases 2A-50c Packages Animal Condiment, 6-3,-c per lb., $
    Cases 16-75c Packages Animal Condiment, $
    2000 Lbs. in 12 lb. Buckets Animal Condiment, $ 130.00
    4000 Lbs. in 25 Jb. Buckets Animal Condiment, $ 260.00
    Lbs. in 50 lb. Drums Animal Condiment, $

    Lbs. in 100 lb. Drums Animal Condiment, $
    Cases 48-25c Packages Perfect Louse Killer,- $
    $ 409.50
    “Town Fairdale, State Pa. Date April- 30, ’06.
    “ 150 days after date for value received, I, we, or either of us, promise to pay to Columbus Food Co., or order, Four Hundred & Nine & 50-100 Dollars, at Columbus Food "Co.’s office, Columbus, Ohio, with interest after maturity until paid. '
    (Signed) “J. S. Dimon.
    “We, the undersigned agree with J. S. Dimon of Fairdale, State of Pa., executing above order as follows: You are expected and instructed to sell Columbus Food strictly on its merits and to warrant and guarantee said Food to each customer if used and fed according to printed directions. And we agree in all 'cases where your customers have fed the Food for 30 days as aforesaid, and by writing Columbus Food Company, Columbus, Ohio, stating to them just how they have fed the Food, and how long and what kind of stock fed and condition of same. If we are then unable to show them how to feed the Food and get the results we claim for it by them furnishing us with their affidavit, clearly and explicitly stating they have fed said Food in accordance with our instructions, detail the manner of feeding same, and that his stock has derived no benefit therefrom, and we agree in all cases where your customers have complied with the above to ship you free of charge f. o. b. cars your station, as many pounds, not exceeding 500 lbs. to a single customer, as shall appear by such affidavit to have been used by such customer. It is understood that this guaranty shall cover in each case only the first sale made to each individual customer. Otherwise this warranty is of no force or effect.
    “Countermands not recognized.
    (Signed) “ Columbus Food Company,
    “ 115 Vine St., Columbus, Ohio.
    “Sole Mfrs. of Columbus Foods.
    “No agreement recognized unless in writing bn this sheet.
    (Signed) “Stallsmith, Salesman.”
    Indorsed upon back of the foregoing agreement is the following:
    “For value received this note is assigned to Arlington C. Harvey. August 27, 1906.
    (Signed) “ Columbus Food Company,
    “D. N. Moore, Mgr.
    “Arlington C. Harvey pay to Farmers’ National Bank, Montrose, Pa., or order.
    “The Columbus Savings Bank Company,
    “O. G. Henderson, Cashier.”
    Note. The last indorsement of bank and cashier erased with ink lines.
    Searle, P. J., filed the following opinion:
    The copy of instrument filed with plaintiff’s statement as the one on which suit was brought is as follows:
    “Town Fairdale, State Penn’a, Date April 30, ’06. 150 days after date for value received I, we or either of us promise to pay Columbus Food Company or order Four hundred and nine and 50-100 dollars at Columbus Food Company’s office, Columbus, Ohio, with interest after maturity until paid.” (Signed) “ J. S. Dimon,” and indorsed on back thereof as follows: “For value received this note is assigned to Arlington C. Harvey. Columbus Food Company, D. N. Moore, M’gr., August 27,1906.” November 19, 1906, upon affidavit of defendant setting forth in substance that the copy of instrument upon which suit was brought contained in plaintiff’s statement was only a portion of the instrument signed by defendant. Rule was granted upon plaintiff to show cause why he should not file in the No. and Term of this action a full, true and correct copy of the original itself of this instrument alleged by the defendant to be only in part quoted in plaintiff’s statement in the prothonotary’s office as oyer of the same.
    November 24, 1906, this rule for oyer was discharged upon plaintiff’s attorney delivering to the prothonotary to be impounded by him the original note — said prothonotary to retain custody of same until a copy of the original is deposited with prothonotary.
    The affidavit of defense filed December 3, 1906, with an amended affidavit filed December 31, 1906, claim to give a correct copy of the instrument executed by J. S. Dimon upon a portion of which as claimed by plaintiff’s statement suit was instituted. This copy shows an order by J. S. Dimon to the Columbus Food Company for a bill of goods appended to which is the note a copy of which is contained in plaintiff’s statement. This signature of J. S. Dimon being after the note which follows immediately after the order of bill of goods and is only signature of defendant to the paper. Following the note is what purports to be an agreement with defendant containing, instruction to said defendant how to sell the goods ordered and how to warrant and guarantee them and authorizing certain specific agreements with purchasers. This last agreement or instructions is signed only by Columbus Food Company, 115 Vine St., Columbus, Ohio, also the words “Countermands not recognized. No agreements recognized unless in writing on this sheet.” Also assignment to plaintiff.
    . The affidavit of defense avers an agreement made with the agent of the company at time he signed the written or printed paper whence he was appointed an agent of the Columbus Food Company, and on same day he and said agent agreed that said Dimon could countermand the order for goods and rescind contract at any time previous to June 1,1906; that said Dimon did on May 1, 1906, write a letter to Columbus Food Company rescinding and revoking the agreement, and ordering them not to ship any goods, notwithstanding which Columbus Food Company shipped goods to him which he refused to receive, and so notified company June 7,1906.
    It was urged by plaintiff’s attorney that this affidavit was not an answer to plaintiff’s suit:
    1. Because the paper on which suit was a negotiable note passed, before due, to an innocent holder.
    2. ' That all the instrument alleged to be a portion of the written agreement of the parties by the defendant, taken- together, do not modify or change the legal effect of the paper signed by Dimon; taken as an entirety it remains a negotiable instrument and is not subject to any defense of the character set up in affidavit of defense when passed to an innocent holder for value before maturity.
    The whole paper signed by Dimon and also signed by Columbus Food Company, by its agent, must be taken as an agreement between the parties either entire or partial, and in either case the entire paper is to be taken as the foundation of the suit. The defendant alleges that the entire paper does not contain all the agreement between the Columbus Food Company and himself, and that there were other agreements made between himself and the plaintiff company through its agent at the time of signing of this paper and subsequent to signing it, but on same day (and consequently before it was possible for the agent to have delivered it to the principal), which so modified the paper as to allow the defendant to rescind the agreement therein contained, and that he did rescind the said agreement before thé time stated in plaintiff’s narr of its transfér to the present plaintiff.
    This affidavit in short alleges that the actual agreement between defendant and the agent of the Columbus Food Company was partly written and printed and partly verbal; and that the entire agreement gave him a right of rescission of contract, which he exercised before any rights under the contract vested in plaintiff.’
    These averments entitle the defendant to have the facts passed upon by a jury, especially as there are expressions in the written instrument which passed to plaintiff which might be construed to indicate that the writing did not contain the entire contract between defendant and the Columbus Food Company.
    It was claimed by attorney for defendant at the time of the argument of this rule, that the order of court as to the custody of the original instrument by the prothonotary' did not. make the paper a part of the files, and therefore his right of oyer was not protected by said order, and asked that the original rule as to oyer should be reinstated. Plaintiff’s attorney stated that if the court was of opinion that defendant was entitled to have a copy of instrument made part of record he would consent that the original now impounded in hands of prothonotary be filed in the case. It is therefore ordered that the original paper impounded in custody of the prothonotary be marked by him filed and made a part of the record in this case. And the rule to show cause why judgment should not be entered for want of sufficient affidavit of defence, is hereby discharged.

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

      W. D. B. Ainey, for appellant. —
    The note was negotiable: Odiorne v. Sargent, 6 N. H. 401; Sanders v. Bacon, 8 Johnson (N. Y.), 485; Morris v. Lynde, 73 Me. 88; Chicago Ry. Equipment Co. v. Bank, 136 U. S. 268 (10 Sup. Ct. Repr. 999); Brill v. Crick, 1 M. & W. 232; Clanin v. Machine Co., 118 Ind. 372Carr v. Welch, 46 Ill. 88; Ilsley v. Smedes, 15 Daly, 488; Bank v. Morgan, 165 Pa. 199; Phelan v. Moss, 67 Pa. 59; McSparran v. Neeley, 91 Pa. 17; Craig v. Sibbett, 15 Pa. 238; Bookoven v. Bank, 11 W. N. C. 570; Siegel v. Bank, 7 Lawyers’ Rep. Annotated, 537.

      A. B. Smith, for appellee. —
    The additional agreement to warrant and guarantee the goods by the defendant renders, the instrument nonnegotiable under the express provisions of -the fifth section of the negotiable instrument law of 1901, P.; L. 1901, No. 162.

      April 20, 1908:
    The plaintiff in this case having become the owner of the instrument sued upon, such ownership cannot be restricted simply to the language thereof creating simply a promissory note, but the assignment being upon the back of the entire instrument title to it entire'passed and under the familiar principle of law he took the instrument subject to every defense which the maker had against the assignor: Stokes v. Dewees, 24 Pa. Superior Ct. 471; Morgan’s App., 126 Pa. 500; Janes v. Benson, 155 Pa. 489.
    The affidavit of defense in the case at bar is sufficient to prevent judgment and send the case to a jury: Keeler v. DeWitt, 24 Pa. Superior Ct. 463; Machin v. Prudential Trust Co., 210 Pa. 253; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Wheatley v. Niedich, 24 Pa. Superior Ct. 198; Thomas v. Loose, 114 Pa. 35; Locher v. Jones, 14 Pa. Dist. Rep. 781.
   Opinion by

Beaver, J.,

The facts of this case, and the various steps taken in the court below to obtain final judgment, are numerous and peculiar. They are fully set forth in the opinion of the court below, refusing judgment for want of a sufficient affidavit of defense. Assuming that that opinion will be brought into the report of the case, we content ourselves with a simple allusion to the main facts, so as to make our opinion intelligible in connection with that of the court below.

The use, by the plaintiff in his declaration, of one out of four distinct parts of which the instrument, upon which suit was founded, was finally found to consist, was certainly, to say the least, disingenuous and misleading. It strengthens the suspicion, which a careful reading of the whole instrument arouses, that it was specially designed for such a use.

The instrument, however, remains entire and intact and conveyed to the plaintiff, who alleges that he1 is an innocent holder for value before maturity, full knowledge of all the facts which fixed the liability of the defendant, and of which he could have taken advantage, if the obligation had remained in the hands of the original holder.

It is clear that the third part of the paper, variously called a “warranty” and a “guaranty” on the part of the Columbus Food Co., if the facts therein contemplated had arisen in such a way as to create a liability on its part, would have entitled the defendant to a defense to the payment of the second part of the paper, which is in the shape of a promissory note, as contained in the plaintiff’s declaration, at least to the extent which he may have suffered pecuniarily in warranting and guaranteeing the food, ordered in the first part of the paper, to customers, as directed in the said warranty.

The fourth part of the paper is as follows: “No agreement recognized, unless in writing on this sheet.” This, however, is signed only by “Stallsmith, salesman,” and is not signed by the defendant. Unless, therefore, he distinctly assented to it at the time of the execution of the paper, we cannot see that he would be bound thereby.

The defendant does not deny the execution of the agreement upon which the present action is founded. He claims, however, that certain representations were made by the agent who secured his signature which induced the execution of the agreement, and without which he would not have signed it, and that, in pursuance of those representations, he subsequently orally rescinded it. Under all our authorities, evidence is admissible to establish these facts. Among the latter ones are Machin v. Prudential Trust Co., 210 Pa. 253; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Wheatley v. Niedich, 24 Pa. Superior Ct. 198; Keeler v. DeWitt, 24 Pa. Superior Ct. 463.

Whether or not they shall be established will be a question for the jury. We are clearly of the opinion that, under the allegations of the affidavit of defense, the defendant should have an opportunity to establish them.

The present holder of the agreement (the plaintiff in this action) took it with full notice of its contents. Independently, therefore, of the provisions of our negotiable instruments Act of May 16,1901, P. L. 194, we are of the opinion that the agreement upon which this suit is founded in its entirety is not a negotiable instrument and under sec. 196 of said act is governed by the rules of the law merchant.

For the reasons herein stated, we are of opinion that the plaintiff is in no better situation than would have been the original holder — the Columbus Food Company — and, as to the latter, if the defendant clearly established the facts set forth in his affidavit of defense, he would have had a valid defense to the payment of that portion of the agreement which is denominated “the note.”

Judgment affirmed.


author: Henderson, J.,

text:
    O’Malley v. Erie & Wyoming Valley Railroad Co., Appellant.

      Railroads — Diversion of water onto neighboring lands — Evidence.
    In an action against a railroad company to recover damages for injuries to land caused by an alleged wrongful diversion of water from the street on which the railroad tracks were laid, binding instructions should be given for the defendant, where the evidence shows that the tracks had been laid before plaintiff had title’to the land in question; that the construction of the roadbed did not cause the conditions complained of; that no change in the condition of the tracks or the surrounding lands had occurred since the original laying of the tracks; and there is a total absence of facts from which a legal conclusion could be drawn that the defendant was under any obligation to the plaintiff to take care of the water which flowed along the street during heavy rains.
    Argued March 5, 1908.
    Appeal, No. 57, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 1,023, on verdict for plaintiff in case' of Mary O’Malley and Margaret O’Malley v. The Erie and Wyoming Valley Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $554.59. Defendant appealed.

      April 20, 1908:

      Error assigned was in refusing binding instructions for defendant.

      John McGahren, with him Willard, Warren & Knapp, for appellant.

      James L. Lenahan, for appellees.
   Opinion by

Henderson, J.,

The plaintiffs are the owners of a house and lot at the corner of Welsh and Railroad streets in the township of Jenkins. The defendant’s track is located along Railroad street. The act of which the plaintiffs complain is that the defendant maintained a ditch or trench which emptied into an iron pipe placed by the defendant under Welsh street “ to drain their said railroad” and that said ditch, trench and pipe were negligently and carelessly permitted to become filled and obstructed so that water falling on the surface in time of rain was backed onto the lot of the plaintiffs thereby injuring the foundation walls and decreasing the rental value of the premises. The only witness called to establish the plaintiffs’ claim was Mary O’Malley, one of the plaintiffs, and the sufficiency of her evidence was challenged by the defendant’s first point which was a request for binding instructions for the defendant. After a diligent search we have failed to find any evidence which will support the action. It does not appear that the defendant maintained a ditch to drain its property, nor is there any fact exhibited from which an inference arises that it was under any obligation to construct or maintain a ditch. The witness named did testify that the railroad company made a ditch along its track on Railroad street to the iron pipe across Welsh street, but it does not appear from her testimony when this was done and her own testimony shows that a ditch has not been kept open for many years; nor is there any evidence that the defendant ever had anything to do with the iron pipe, the obstruction of which is part of the plaintiffs’ grievance. It is in a public highway presumably under the control of the supervisors and for its existence or condition the defendant is in nowise responsible from anything which appears in the case. It is not charged in the declaration nor proved that by reason of the location of the railroad it became the duty of the company to construct a ditch or drain to carry off surface water which would not have flowed where it now does except for the construction of the track. Nor is it charged or shown that the defendant diverted water into Railroad street and onto the plaintiffs’ land or that the water which flows onto the plaintiffs’ land would not have gone there if the railroad track were not in existence. The case has the radical defect that the duty of the defendant to maintain a ditch nowhere appears. The great preponderance of evidence is to the effect that there never was a ditch constructed there; that the water flowed along Railroad street in a natural depression and that by reason of the confor•mation of the surface in the immediate vicinity it would be impossible for water to flow onto the plaintiffs’ premises because of the obstructed iron pipe for the reason that the surface of Welsh street where the pipe is located is two feet or more lower than the surface of the plaintiffs’ lot. But considering the case from the plaintiffs’ evidence alone we find a total absence of facts from which a legal conclusion can be drawn that the defendant is under any obligation to the plaintiffs to take care of the water which flows into Railroad street during a heavy rain. It is primarily the duty of the supervisors to control the highways and to provide means of drainage. It would appear that the railroad track was in its present location before the plaintiffs’ mother acquired the lot and no change in the condition of the tracks or the surrounding lands is shown to have occurred since then. As there is no evidence that the construction of the roadbed caused the conditions complained of there is not the slightest foundation for charging the defendant with liability. If we concede that at some time the company deemed it advisable to dig a ditch along the track to carry off the surface water no obligation arises to continue that arrangement unless the company is bound to take care of the water, and this the plaintiffs have not made to appear. We are constrained, therefore, to sustain the second assignment of error.

The judgment is' reversed.


text:
    Scranton v. Koehler, Appellant.

      Municipal lien — Scire facias — Invalidity of writ — Estoppel.
    On the trial of a scire facias sur municipal lien where it appears that the writ was served on the defendant who appeared regularly and made no objection to the form of the writ either in his affidavit of defense or otherwise, and it also appeared that the writ could not be found, the defendant has no standing, after both sides had closed, to ask for binding instructions in his favor, because the writ had not been offered in evidence, and because the writ was invalid and unknown to the law.
    Argued March 5, 1908.
    Appeal, No. 24, Jan. T., 1908, by defendant, from judgment of C. P. Lackawanna Co., May T., 1903, No. 723, on verdict for plaintiff in case of City of Scranton v. Robert P. Koehler.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur municipal lien.
    At the trial the court gave binding instructions for plaintiff.
    Verdict for plaintiff for $239.32.
    On a rule for judgment for defendant non obstante veredicto, Edwards, P. J., filed the following opinion:
    Defendant offered no evidence in this case. When the plaintiff rested, defendant’s counsel moved for binding instructions in favor of the defendant, for the reason that no scire facias had been offered in evidence and for the further reason that the scire facias in this case "was the same as in the cases already decided by the Superior Court, issued under the act of 1901 instead of under the act of 1891,” it being “a writ unknown to the law and contained no summons to the defendant, was not directed to the sheriff, had no return day mentioned therein and was not a valid sci. fa.”
    Counsel in his motion evidently refers to the cases of Scranton City v. Stokes, 28 Pa. Superior Ct. 434, and Scranton City v. Stokes (No. 2), 28 Pa. Superior Ct. 437. In a case handed down this day, City of Scranton v. Higgins, we have entered judgment for the defendant in accordance with the decisions of the Superior Court in the cases mentioned and because the record in Higgins case disclosed clearly that the scire facias in that case was issued under the provisions of the act of 1901, and consequently under the decisions aforesaid, was a void writ. In the record now before us there is nothing to indicate the nature or form of the scire facias that was issued. We cannot assume that it was the kind provided by the act of 1901.. If we have the right to assume anything on this point it ¡would be that the scire facias was legal and was legally issued: The record does not justify the instruction asked for by the defendant’s counsel.
    '■ The best way to settle the question is to ascertain what w;as doné'.at the trial. The first witness sworn for the city was the assistant city clerk. Through him was proven the ordinance authorizing-the paving of Mulberry street and also the letting of the contract. The next witness was the assistant city engineer. He proved that the work of paving was completed on November 11, 1897. The importance of this fact relates .to the time'the lien was filed, viz.; May 10, 1898, which is within the six months’ period. In this connection we notice from the record that the lien was amended so that it should appear that the work- was completed on November 11, 1897, and that the final assessment was made the same date. A copy of the lien was admitted in evidence without objection, the lien itself having been lost.
    ' We come now td the scire facias. This was lost, and no copy was offered in evidence. The notes of the testimony on this point are as follows:
    ' • ME Davis: The lien in this case is missing from the files, as well as the sci. fa. I had expected Mr. Williams here this morning to make an affidavit that the lien is not in its proper place; but he is absent from the court.
    Mr. Duffy: It will not be necessary.
    ■ Mr.Davis: The plaintiff offers in evidence, without objection on the part of the defendant, the copy of the municipal lien heretofore filed in this case.
    'The- remark of defendant’s counsel that “it will not be necessary” refers, we should think, only to the fact that it was not necessary to call Mr. Williams. At any rate, the record shows that no scire facias nor copy thereof was offered in evidence, and that is one of the reasons assigned by defendant for the entry of judgment in his favor.
    Is it necessary for the plaintiff, in the trial of a scire facias municipal lien, to offer the scire facias in evidence? It is the usual practice to do this, but we can find no authority for the proposition that a failure to do so is fatal to the plaintiff’s case. It was decided long ago in Pennsylvania (the Schenly Case, 36 Pa. 29) that a scire facias sur municipal lien is an original and not a judicial writ: but we need not discuss this question here. It is not difficult to determine the place or office of a scire facias sur municipal lien in the practice of our courts. It has a twofold purpose. It is a summons and a declaration. In some states the scire facias performs the office of a summons only, and in these jurisdictions the plaintiff must file a separate declaration; but this is not the case in Pennsylvania. We see no reason why a defendant cannot move to quash the scire facias if it is defective as a summons, or why he cannot demur to it if it is faulty as a declaration. In case of assumpsit it is not deemed necessary to offer the summons or declaration in evidence. We never heard of a motion for binding instructions for the defendant because the summons or declaration was not offered in evidence. They are necessarily a part of the case as much as the scire facias sur municipal lien is a part of the case. Any defect in either the summons, declaration or scire facias, or any material variance between the probata and allegata, can be called to the attention of the court, and any motion pertaining thereto can be made, without offering the papers themselves in evidence. It is no argument against our proposition that a summons in ejectment is always offered in evidence. This is necessary on account of the sheriff’s return,- which is prima facia proof of defendant’s possession. It may be also contended that the scire facias should be offered in evidence in order to establish the fact that it was issued within five years from the date of the lien. It must be remembered that we think it is good practice to offer the scire facias in evidence, although the failure to do so does not destroy the plaintiff’s case. Whatever may be the force of this last contention, it has no place in the case at bar, because the record on this point is as follows:
    Mr. Davis: We offer in evidence prsecipe as follows: “No. 723, May.Term, 1903, Lackawanna County, ss.: In common pleas. City of Scranton v. Robert P. Koehler. To the prothonotary. Issue scire facias sur municipal lien, No. 51, May Term, 1898, returnable sec.leg. Prot.’s office, Lackawanna County, J. Copeland, Prot.”
    Mr. Duffy: No objection. There is another view to be taken of this case. Whatever might be the correct view as to the necessity of offering the scire facias in evidence, the defendant is not now in position to raise this question. Defendant’s affidavit of defense and plea were admitted in evidence without objection. The affidavit of defense sworn to May 23, 1903, is as follows:
    “Robert P. Koehler being duly sworn says, I am the defendant in the above entitled case. I have a full and just defense to the whole of plaintiff’s case, the nature and character of which ,is as follows: The alleged lien on which the above scire facias was issued was for paving Mulberry street in the City of Scranton. No lien was filed against my property within the time prescribed by law, and no lien existed at the time such scire facias was issued. The lien was not filed within six months from the completion of the work, nor within six months from the filing of the assessment for the costs and expenses of the same. The contract for said paving including both the costs of construction and for repairs for the term of five years, making the whole assessment' for such payment illegal and void; all of which I expect to prove on the trial of the above case.”
    On April 9, 1904, the following plea was filed:
    “Enter plea of non assumpsit, payment with leave to introduce special matter; no lien; and for a further special plea the defendant says that there was no lawful assessment against the property described in the scire facias in this case.”
    It will be noticed that at no time is there any intimation as to the form of the scire facias. The burden of the defense all the time is that the lien was not filed in time and that the assessment was unlawful. We are of the opinion that it is now too late to raise this question as to the form of the scire facias, even if there were anything on the record to justify the raising of .such a question. There is not a word upon the record that throws any light as to the nature of the scire facias issued in this case.
    April 20, 1908:
    For the reasons stated the rule for judgment non obstante veredicto is discharged, and we direct judgment to be entered upon the verdict in favor of the plaintiff for the sum of $239.32, with interest from November 26, 1906.

      Errors assigned were in giving binding instructions for plaintiff and in refusing judgment for defendant non obstante veredicto.

      Thomas P. Duffy, for appellant.

      David J. Davis, city solicitor, with him H. R. Van Deusen, assistant city solicitor, for appellee.
   Opinion bt

Henderson, J.,

The appellant’s argument is predicated of an alleged invalidity of the writ of scire facias issued on the municipal lien, but there is nothing on the record upon which to base the objection. When the case was tried the writ could not be found, but the record shows that it was issued and that'the defendant appeared and pleaded thereto. There is no evidence that the writ was in the form prescribed by the Act of June 4,1901, P. L. 364, and as the lien was filed May 10, 1898, the presumption is that it conformed to the requirements of the law relating to municipal liens filed prior to 1901. The supplemental affidavit of defense offered at the trial was rejected by the court and is not a part of the record. It was not the duty of the court at the oral request of the counsel to inspect the writ to determine its illegality, nor was the plaintiff bound to offer the writ in evidence. Our attention has not been called to any adjudication which makes the offer of the writ a necessary condition upon which a recovery may be had. The writ was served on the defendant. He appeared regularly, but made no objection to the form of the writ. The objection to the proceeding set up in the affidavit of defense was (a) that the lien was not filed in time; (b) that the contract for the work included both the cost of construction and of repairs for the term of five years, and the plea entered subsequently attacked the lien and not the writ'. If there were any evidence of informality in the writ we think the defendant should be deemed to have waived it in view of his conduct. The opinion of the learned trial judge on the rule for judgment non obstante veredicto sufficiently vindicates the action of the court.

The assignments are all overruled and the judgment affirmed.


author: Rice, P. J.,

text:
    Mercersburg College, Appellant, v. Poffenberger.

      Taxation — Exemption—Charity—School—Income■ from students — Surplus income.

    If the surplus income of a school over cost of maintenance is derived from payments made by students, the'institution cannot be said to be maintained by public or private charity, even though the surplus be used to enlarge the institution by the purchase of additional lands and the erection of additional buildings — particularly if it be not shown that without such enlargement the institution could not be maintained.
    A school will not be deemed to be a purely public charity, although it gives free tuition to a certain number of students, where it appears that the sums paid by students were sufficient not only to pay the annual expenses of maintenance, but to yield a surplus of about $9,000 per annum for five years, and that this surplus was not used to increase the number of free scholars, or to reduce tuition fees in the future, but to the extension and improvement of the grounds, buildings and equipment, and the augmentation of its facilities and efficiency as an educational institution.
    If the income derived from students’ charges alone exceeds the amount necessary to maintain the institution, the lands and buildings are not exempt from taxation; and in determining whether there is a surplus over the cost of maintenance, the rental value of the lands and buildings are not to be included m the cost of maintenance.

      Argued Oct. 22, 1907.
    Appeal, No. 184, Oct. T., 1907, by-plaintiff, from decree of C. P. Franklin Co., Equity Docket 3, page 24, dismissing bill in equity in case of The Regents of the Mercersburg College v. Jacob TJ. Poffenberger, collector of taxes.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Endlich, J., specially presiding, filed the following opinion:
    This bill is filed for the purpose of obtaining a decree (1) declaring Mercersburg College to be an institution of purely public charity, and a college founded, endowed and maintained by private charity, and its property, with some few admitted exceptions, to be exempt frífia taxation for county, borough and school purposes, and (2) enjoining the collection of such taxes assessed against the whole of its property during the years 1905 and 1906. The answer denies the character claimed for the institution in the bill, as well as the necessity of much of the property for occupancy and enjoyment by its lawful purposes, and asserts the liability of the whole of it to local taxation. The cause was tried, and upon conclusion of the testimony argued, on December 1, 1906. There seems to be no ground for dispute about the facts.
    ' FINDINGS OF FACT.
    1. By a decree of this court, of October 30, 1865, a corporation was erected on the basis of certain articles thereby approved as its charter, providing for the establishment of “a college for the education of youth in the learned languages, the arts, sciences and useful literature .... called and known by the name of the Mercersburg College .... under the management, direction and government of” nine regents, named, who were to “continue to exercise their trust until their successors shall be-duly elected,” and who with their successors were “declared to be a body politic and corporate .... by the name, style and title of The Regents of the Mercersburg College.” A further decree of this court, of June 20, 1894, increased the number of the regents to fifteen, of whom nine were to be elected by the Synod of the Potomac of the Reformed Church of the United States and six by the board of regents. The plaintiffs are the corporation thus erected and existing in due succession to its original organization under said decrees.
    2. The powers conferred upon them by their charter are, besides those essentially incident to all corporations, and those specifically involved in the management and operation of a college with its usual incidents, the powers “for the use of said college” to acquire and hold real and personal property and dispose of or invest the same, and for the purchase of real estate, repair of existing and erection of new buildings for the general purposes of the institution, to issue stock redeemable or perpetual on such terms as they may deem fit, and procure money in such manner and to such amount as they may think expedient.
    3. The college was founded by charitable bequests and gifts of individuals. It has been all along and still is the recipient of such, and may reasonably expect to be aided thereby in the realization of projects of development already on foot. Until within recent years it was almost entirely supported, as a small and sickly institution, by voluntary contributions. During the past twelve years, under the guidance of a most competent principal, it has developed into a large and prosperous school, whose revenues from the sums paid by students for tuition, etc., now not only maintain it, but yield a surplus over and above the cost of maintenance, that surplus averaging for the past five years about $9,000 per annum.
    4. In addition to the income from charges for tuition, etc., the plaintiffs derive a revenue from certain portions of the land (about thirty-five acres, worth from $100 to $150 per acre), acquired by them for the future uses of the college, necessary to be controlled by it with a view to its enlargement, but presently cultivated as farming land; also from a building outside of the college grounds occupied by and virtually leased to an employee of the institution, its rental value being $50.00 or $60.00 per year; and, finally, from certain old buildings known as the Preparatory School and Diagnothean Hall, formerly used as dormitories in connection with the college, but now unused by it and at times wholly or partially rented.
    5. A tract of about eleven acres -is cultivated by plaintiffs as a truck patch, the produce being consumed in the school, except an occasional trifling excess over its needs, which is' sold. Upon this tract is a pig-pen in which a quantity of pigs are fattened with the offal from the college kitchen and table. From this economy plaintiffs realize about $500 a year.
    6. In Main Hall is kept and operated a store under plaintiffs’ direction in such manner as to pay for itself and yield a profit of from $2,000 to $3,000 a year. The store is for the accommodation of, and patronized by, not the general public, but the students; is indispensable as well for their convenience as for the proper discipline of the institution, and pays no rent to the plaintiffs. Its profits go to the maintenance of the athletic enterprises of the students, which, if not thus paid for, would have to be either abandoned or provided for by contributions from or assessments upon the students. Plaintiffs derive no revenue from the store.
    7. The entire income of the college over and above what is needed to defray the expenses of its maintenance goes into the betterment of the school, the extension and improvement of its grounds, buildings and equipment, and the augmentation of its facilities and efficiency as an educational institution. None of the regents derive any profit from it whatever. Their service is gratuitous. .No stock has ever been issued. No individual has, as a member of the corporation, realized any pecuniary advantage by the increase in the extent or value of the property or by the income derived from its successful management.
    8. Within the constantly expanding limits of the accommodations afforded, the college is open to all white male students of suitable age and character, without distinction of class or creed. No particular religious or denominational beliefs are enforced; nor is any sectarian test applied in the employment of instructors. The regular annual charge for resident students in 1901 and 1902 was $330, and is now $375 (with an additional charge for breakage, etc., of $5.00, contingently returnable). Sons of ministers intending to study for the ministry are charged $250. A similar reduction is made in cases of sons of officers of the army and navy. Poor students, willing to render certain services in the institution, are received at the rate of $150 — a reduction greatly in excess of the market value of the services exacted. And there are yearly, on an average, two poor students who render no services and pay nothing at all. The minimum charge for separate rooms in 1901 and 1902 was $30.00 and is now $40.00, running all the way up to $150. Day scholars are charged $50.00 for tuition. The college has at present 371 students, of whom over ninety enjoy reduced rates. The regular charge of $375 (or $380) is very much below the average charges made by other institutions of similar standing and facilities.
    9. The real estate owned by the plaintiffs, and lying partly within the limits of the borough of Mercersburg and partly in Montgomery township, comprises about eighty-three acres, including four acres leased to them by the Synod of the Potomac for ninety-nine years, and a small vacant lot. They also hold under lease (with the intention and for the most part with options to purchase) thirty-nine and one-half acres. With the exception of said vacant lot and the properties referred to in the fourth finding of fact, all the property held by plaintiffs is occupied by and necessary for the purposes of the college.
    10. The total amount (representing voluntary contributions, surplus revenues and a remaining indebtedness of $50,000) expended since 1893 in acquiring and improving the property, etc., óf the college exceeds $175,000, which includes $20,000 spent in enlarging and bettering the buildings upon the tract held under the lease from the Synod of the Potomac.
    11. The rental value of the entire property is such that, if it be added to the expense of maintaining the college, the total would more than wipe out the clearings of any year.
    12. For the year 1905 the county of Franklin levied and assessed a county tax upon the real estate of plaintiffs and two horses and five head of cattle owned by them, amounting to $479.22, and for the year 1906, a similar tax on the same property, amounting to $479.50.

      13. For the year 1905 the borough of Mercersburg levied and assessed a borough tax upon so much of said property as lies within its limits, amounting to $539.75.
    14. For the year 1905 the Independent School District of Mercersburg levied and assessed a school tax upon so much of said property as lies within its limits, amounting to $541.25.
    15. Notice of these several assessments was given to plaintiffs, who did not appeal therefrom.
    16. The duplicates for the collection of the county tax for 1905 were placed in the hands of the defendant, Abram Carbaugh, and those for the collection of the borough and school taxes in the hands of the defendant, Jacob U. Poffenberger— they being respectively the proper persons for the purpose.
    17. The plaintiffs admit their liability to taxation upon those portions of their property mentioned in the fourth, and the vacant lot mentioned in the ninth finding of fact; but upon demands made for payment of the gross sums of the several above taxes assessed upon the entire property for the year 1905, refused to pay the same and instituted this proceeding to .restrain their collection, as well as any further steps towards collecting the county tax assessed for the year 1906.
    DISCUSSION
    The bare statement of the foregoing facts carries with it a commendation of the institution here involved, as well as of the devotion, the wisdom and the energy of its management. Unfortunately, under the adjudicated cases, it also decides adversely to the plaintiffs’ contention the question of their rights to exemption from local taxation as regards the whole or any part of their property. . .
    That we are dealing with an institution in its inception and practical workings partaking of many important characteristics of a public charity cannot be doubted. It was founded by charity. Its original and much of its subsequently acquired property was contributed by charity. It continues to be the recipient of charitable' donations. It is open to the public generally. It receives all whom it receives at rates far below those obtaining in other schools of similar rank, many at a still further reduced and some wholly without charge. In the nature of things it cannot admit everybody. But so long as the line is drawn by distinctions which involuntarily affect or may affect any of the whole people (e. g., youth, age, sex, infirmities, etc.), it does not destroy the public character of the institution, although but a small number may be directly benefited: Philadelphia v. Masonic Home, 160 Pa. 572. Neither, as sufficiently appears by Episcopal Academy v. Philadelphia, 150 Pa. 565; White v. Smith, 189 Pa. 222, and Haverford College v. Rhoads, 6 Pa. Superior Ct. 71, is that character impaired by the preponderance of representatives of a certain denomination in the management or by a discrimination between students with respect to charges for tuition, etc., based upon their parentage or their ability to pay. Again, there is - in the relation of plaintiffs to the institution committed to their care no element of gain or profit to them individually. Their charter expressly designates that relation as one of “trust,” and circumscribes the power conferred upon them to receive, handle, increase and dispose of property by the words “for the use of said college,” while limiting that of issuing stock and borrowing money to the purchase and improvement of real estate “for the general purposes of the institution.” So far as the persons constituting the corporation are concerned, in the absence of any stock issue giving the holders an interest in any part of the property or a right to dividends payable out of profits made by its use, the language of the present chief justice in Donohugh’s App., 86 Pa. 306, at p. 341, is very much in point:
    “The library is a trust, and while it is the property of the corporation; and therefore in a certain sense of the corporate stockholders, yet it is not their property in any full, legal or commercial sense. They cannot sell it and divide the proceeds among themselves as individuals — that would be a violation of the trust, which a court of equity would be bound at once to restrain.”
    At the same time it must be conceded that there is in the organic law of this corporation the same lack that was deemed significant in Thiel College v. Mercer County, 101 Pa. 530, and Miller’s Appeals, 10 W. N. C. 168 (see Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 580), of any provision stamping it as a charity, pure and simple, and its property as devoted to such charity to the exclusion of private or corporate gain— of any provision preventing the institution from being ever turned entirely into a money-making concern, or permanently enjoining upon it the retention in its operation of any of the benevolent features above instanced as presently incident to the same. If, therefore, the declared object of the corporation, so greatly emphasized in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, rather than its practical work, is to be looked upon as a test of its charitable character, there is no comfort in the application of such a test here. But apart from this consideration, it must be remembered that it is not every charity even of a public nature that is entitled to hold its property free from local taxation. The constitution exempts nothing, but in art. IX, sec. 1, gives the legislature the restricted power of granting exemption to certain classes of property, among which the only one capable of embracing the plaintiffs’ property is that of “institutions of purely public charity,” leaving it to the legislature to say what subjects within the meaning of the constitutional language, to be declared by the courts as the ultimate interpreters of the constitution, the privilege contemplated by it is to be extended. The legislature by the Act of May 14, 1874, P. L. 158, has ordained in detail what is to be exempt from local taxation. The claimant of exemption is bound to bring itself clearly within this enumeration: Philadelphia v. Barber, 160 Pa. 123,126. The item of it here invoked is:
    “All .... colleges .... and institutions of learning .... with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity.”
    Of course, this enactment is to be read in the light of the constitutional restriction upon exemptions to institutions of purely public charity, and to be construed so as to conform to, and not to violate it. The idea of a purely public charity implies that all the benefit resulting from the management and use of the property held for its purposes goes to the public: Episcopal Academy v. Philadelphia, 150 Pa. 565, 573. It is inconsistent with the withholding from the public of any part of what is contributed by it, in the shape of donations for maintenance, of earnings, or of income from lands or invested funds. Under the statute the criterion of exemption of institutions of learning is to be sought in the words “founded, endowed and maintained by ... . charity.” In applying that criterion it must be so understood as to make it in truth the equivalent of the constitutional test. That does not mean that in order to be within the exemption the institution must be one devoted to pauperizing the public by casting its benefits gratuitously upon those able as well as upon those unable to pay in money or in work. It is settled that the purely public character of a charity is not destroyed if to some extent it derives a revenue from the recipients of its bounty. It is only essential to the preservation of that character that, where its operations are in part carried on upon the footing of business dealings, by exacting a return for what is given, they be as a whole free from any element of corporate as well as private gain: Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 582; Haverford College v. Rhoads, 6 Pa. Superior Ct. 71. This principle was applied in Episcopal Academy v. Philadelphia, supra, with the effect of holding entitled to exemption under the act of 1874 a school founded and endowed by charity, and managed with a view to furnishing educational advantages at a minimum cost and as far as possible gratuitously, but deriving a revenue from tuition fees sufficient to keep it in operation, constantly increasing the number of free scholarships. But it was distinctly stated that had the revenues gone beyond the line of self-support, it would not have been exempt. Of this decision it was declared in Sunday School Union v. Philadelphia, 161 Pa. 307, and in White v. Smith, 189 Pa. 222, that it went to the uttermost limit of liberality in the construction of the constitution and of the statute, and is to be accepted as authority only upon a state of facts identical with that there passed upon. It is to be noted also that the contrary decision in the same case when first before the Supreme Court upon appeal from a preliminary injunction, Hunter’s App., 22 W. N. C. 361, 1 Mona. 1, has been referred to with approval by the same court, before the decision in 150 Pa. 565, in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 580-581, and since in Philadelphia v. Overseers, 170 Pa. 257, 265; White v. Smith, 189 Pa. 222, 229. In view of all this it is declared in Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252, that the doctrine of the Episcopal Academy case “is not to be extended one jot further,” that doctrine being, in Pocono Pines Ass’y v. Monroe County, 29 Pa. Superior Ct. 36, 45, again stated as going no farther than this, that an institution of learning, which in its nature and purposes is a purely public charity, does not lose its character as such under the tax laws if it receives a revenue from tuition fees sufficient to keep it in operation. Accordingly, in the case of Harrisburg v. Academy, 26 Pa. Superior Ct. 252, a school originally founded with state aid, for a long time supported by voluntary donations, but for a series of years self-sustaining from tuition fees based upon “actual cost, including instructors’ salaries, light, heat, repairs and insurance,” and deriving, besides, an annual revenue of $150 from the renting to the principal of the school of a house upon its grounds as a residence, was because of this circumstance held not to be exempt.
    There seems to be nothing at all in the facts of the plaintiffs’ case which can be laid hold of to take it out of the rule thus authoritatively prescribed. The fact that the charges for tuition, etc., are lower than in other similar schools, and are in part or wholly remitted in certain cases, is not at all decisive. See Thiel College v. Mercer County, 101 Pa. 530; Philadelphia v. Overseers, 170 Pa. 257; Miller’s Appeals, 10 W. N. C. 168; Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252. It is not claimed, as it was in the last-named case and shown in Episcopal Academy v. Philadelphia, 150 Pa. 565, that the charges made represented but the actual cost of what was given in exchange. Instead of going down with the increase of revenues, the charges at the Mercersburg College have gone up, and there has been no proportionate increase in the number of students received gratuitously. For some years past its income from charges for tuition, etc., has been sufficient, not only to meet the actual current expenses of its maintenance, but to yield a substantial annual surplus over and above the same; and in addition thereto, it derives a revenue from the cultivation as a farm of part of the land and the rental of buildings belonging to it. It is true that it is also in receipt of voluntary donations. But it is idle to talk of a school as “maintained" by such, where its income from its students is employed and exceeds what is needed for that purpose. It is also true that this excess goes into the extension and improvement of the property and the enhancement of the facilities of the school. Yet it is revenue derived from the use of the property donated by charity. It is money gathered from the public not by way of charity, but in exchange for benefits conferred upon it in the line of the purposes for which the institution was created and endowed. It represents payments made by the public for those benefits over and above their cost to the college. In every aspect it is money contributed by the public. Being retained by the corporation it is something contributed by the public and withheld from it. Granted that, by reason of the use of the surplus in enlarging the capacity, the conveniences and the efficiency of the school, the public will in turn derive a benefit from it; still, whatever that may be, it can only be the issue of what has come from the public, the corpus being held by the corporation as its own. In a word, a surplus thus derived is, no matter how invested or employed, corporate profit; and hence in Harrisburg v. Academy, 26 Pa. Superior Ct. 252, it was said at p. 262, referring to the $150 revenue over expenses met by tuition fees:
    “To what purpose this was devoted does not appear, nor is it material to the decision of this case that we should know, in view of the admission that the revenue derived from other sources made the institution self-sustaining.”
    In determining whether there is a surplus over the cost of maintenance it will not do to include in the latter the rental value of the property devoted to the purposes of the institution. According to the legal definition of rental value it necessarily means the value of the use of property for any purpose to which it is adapted: Nelson v. Ry. Co., 41 Minn. 131 (42 N. W, Eepr. 788). It would be a curious system that would grant or deny to an institution enjoying a surplus of revenues immunity from taxation in proportion to the increase or decrease in the value of the property out of the use of which that revenue is made. An institution largely endowed with property in an appreciating locality would be privileged to increase its corporate profits from year to year practically without limit, and yet remain a purely public charity. Another, doing exactly the same things and making exactly the same surplus over expenses would lose that character because its property was worth less in the market. There is nothing in the decision in Philadelphia v. Penna. Hospital, 154 Pa. 9, at p. 11, carefully read, which sustains any such theory. One building of a number comprised in the establishment was used for the reception of patients paying high rates. ' Treated as something apart from the rest of the institution, this .building yielded a considerable profit over the expense immediately incident to its maintenance. Comparing, however, the expense of the whole institution with its income as a whole, the latter, including the revenue from the building referred to, was just about equal from year to year to the actual cost, without considering the value of the property (over $1,000,000) as at all entering into the computation. The point of the decision is that a purely public charity does not lose its status as such because of a profit derived from an integral part of the.establishment and going into its general revenue devoted to the purposes of its creation and as a whole not exceeding the actual cost of its maintenance — a doctrine reaffirmed in Penna. Hospital v. Delaware County, 169 Pa. 305, and in entire accord with the strictest definition of a purely public charity. It is not unlikely that the word “ after,” in the next to the last paragraph of the per curiam opinion in Philadelphia v. Penna. Hospital, 154 Pa. 9, at p. 11, ought •to be regarded as but a slip of the pen, or a misprint, for "without;” for throughout the case, and in the preceding paragraph the fact of the exclusion of the rental value as an element of cost is emphasized. But even standing as it does, the decision does not profess and is not effective to sanction the inclusion, in the estimate of the cost of maintenance as compared with revenue, of the rental value of the property occupied. It was cited by counsel for defendants in Philadelphia v. Overseers, 170 Pa. 257, as so deciding; but this view of its effect failed to secure even a passing notice in the elaborate opinion rendered by Mr. Justice Dean. It is very plain that, the question being.one of comparison between corporate income and corporate expenditure, the rental value of the property is no part of the latter. Where the property has been donated for the benefit of the public the corporation holding the legal title is but the vehicle of that benefit. The rental value of the property is a gift to the public and belongs to it. In so far as the property may have been acquired by the corporation. with profits realized and retained by it, the very assertion that, in estimating the' profits of any year the annual value of the profits of other years invested in the property is to be deducted, is its own sufficient refutation. Indeed, the inadmissibility of ■the proposition under discussion is one of those things which are, in the language of Keith, P., in Smoot v. L. & B. Assn. (Va.), 29 S. E. Repr. 746, “so clear that the attempt to elucidate them serves rather to obscure.” It is, however, in addition settled by express authority. In Harrisburg v. Academy, supra, it seems to have been urged that the rental value of the property should be considered in determining whether the revenues exceeded the cost of maintenance. Rice, P. J., delivering the opinion of the court, rejects, the contention, saying, at p. 262:'
    “ There is no warrant for holding that that is the test by which ■to determine whether an institution, founded and endowed by public or private charity, is or is not self-sustaining within the meaning of the decisions.”
    ' Equally irrelevant is the fact that the college owes a debt of $50,000 incurred in the enlargement and improvement of its property. It has the equivalent in property and equipment, i. e., in the means of realizing increased profits, out of which to pay the interest upon the debt and eventually the debt itself.' Under the circumstance, the incurring of the indebtedness was in truth but the anticipation of future profits. The question whether the debt can be set off against the yearly surplus until the former shall be extinguished by the accumulations of the latter thus comes back to the question already discussed, whether the fact that profits realized are devoted to the increase and betterment of the property employed for the purposes of the institution makes them anything else than corporate profits? It may be pertinent to note that the property held subject to taxation in Philadelphia v. Overseers, 170 Pa. 257, had been (see p. 260) to a considerable extent purchased with surplus income and money borrowed on mortgage. In Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, it was agreed that the property acquired by the association for $70,000 was subject to a debt of $36,000 borrowed to pay for the excess of its cost over what had been' contributed by charity towards its purchase. Yet the fact of even this original indebtedness, though mentioned, cut no figure in the decision.
    The, conclusion, however, reluctantly arrived at seems to be inevitable, that for a considerable period the Mercersburg College must be deemed as having made, by reason of its revenue from the charges for tuition, etc., an annual profit, within the meaning of the decisions, and that during that period it has been and presently is in*no proper sense maintained by charity. It is not even dependent upon, though it looks for the further aid of, charity for the carrying out of its ambitious and praiseworthy program of future extensions and betterments. In a word, it is not a purely public charity free from the element of corporate gain, with which exemption from taxation does not, under our law, consist. And inasmuch as this corporate gain is the result of the conduct of the establishment as a whole, it subjects the whole of it to taxation. This is not the case of a charitable institution deriving a revenue from some distinct item of property owned by it or some divisible portion of the same, and therefore taxable only in respect to it, as in Philadelphia v. Barber, 160 Pa. 123; Sunday School Union v. Philadelphia, 161 Pa. 307; Pocono Pines Ass’y v. Monroe Co., 29 Pa. Superior Ct. 36. The question here is of liability to or exemption from taxation of the entire property of the plaintiffs. No distinction need, therefore, be made between the bulk of it and the items referred to in the fourth and the vacant lot mentioned in the ninth finding. Nor, finally, is it a just, though perhaps a ready, criticism of the law to say that it puts a premium upon nonsuccess and a penalty upon judicious and enterprising management. Failure to earn expenses does not -make a school a public charity: Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 581, per Paxson, C. J. No more, as has been seen, does a school founded and endowed as- a charity lose its character as such by proving its ability to earn its way. But when it has reached and is about to pass that point it has the choice of two courses. It may keep its income down to its expenses by reducing its charges for tuition, etc., or increasing the number of its free scholarships, as in Episcopal Academy v. Philadelphia, 150 Pa. 565, trusting to future charitable gifts for an enlargement of its capacity. Or it may go on, as here, increasing its revenues beyond its expenses and adding to its permanent property from the surplus of its own earnings as well as from such donations as may come its way. In the one case the number of its beneficiaries will probably continue more restricted. But the benefit conferred upon each individual will be greater, and the charity will remain a purely public one, exempt as such from taxation. In the other case the institution will be enabled to reach out farther and whilst perhaps bestowing less direct charity will expand the sphere of its influence and usefulness. But it will do so not upon the footing .'of purely public charity, but partly of commercial business and resulting corporate profit, thereby voluntarily abandoning its .claim to exemption. Which of these alternatives to choose is a practical question. If the latter is chosen, it must be because, it's larger promises outweigh the comparatively trifling advantages of immunity from local taxation. The liability to taxation, however, follows, not upon success; for there may be successful management within the lines of pu'rely public charity, but upon success directed into some form of corporate emolhment, as distinguished from the transmission to the- public, unabridged, of the whole fruits of private benevolence. And it follows, not as a penalty in any sense, but as'a duty incident to the situation the institution has itself created, identical with that of all others engaged in like enterprises, and as> much •& duty as it is a duty to pay debts: Com. v. Duffield, 12 Pa. 277, 281. ■ • -
    CONCLUSIONS.
    (a) The plaintiff corporation is not entitled to a-decree .de-
    claring it to be presently or to have been at the time of. the assessments in its bill complained of' an institution of purely public charity, or a college founded, endowed and maintained by private charity. '•
    (b) The property held by the plaintiff corporation and assessed for county, borough and school taxes -as -found in the foregoing findings of fact was liable to such taxation and was lawfully assessed therefor.
    . (c) The plaintiff corporation is not entitled to the injunction or other relief prayed for in its bill. - - - ■
    (d) The bill is to be dismissed with costs.
    And now, January 10, 1907, it is ordered that the prothonotary enter a decree nisi in accordance with the foregoing decision, viz. : that plaintiffs’ bill be dismissed with costs, and that he forthwith give notice thereof to the parties to this- suit or their counsel of record, sec. reg. ■
    On exceptions, Endlich, J., filed the following, opinion1:
    All the exceptions taken in this case hinge upon the first one. The position there insisted upon was discussed in the decision on file in the light of all the then adjudicated cases bearing upon it and of full arguments of counsel. ■ No' additional cases seem to have been reported and- no new views -are suggested to modify the conclusion arrived at. A careful reconsideration of it has disclosed no avenue of escape from1 it. Nor is there any necessity for re-discussing the matter. It -may, however, not be improper to add to what has heretofore been said that in no legal or popular sense can the expansion and betterment of the institution in question, the acquisition of additional grounds, erection of new and enlargement of old buildings, and the like, be treated as entering into the cost of its “maintenance.” In Moon v. Durden, 2 Exch. 22, 30, Platt, B., says that “the verb 'to maintain' .... signifies to support what is already brought into existence.” In Barber Asph. Pav. Co. v. Hezel, 155 Mo. 391 (56 S. W. Repr. 449), it is declared that it does not mean to provide or construct, but to keep up, to keep from change or decay, to preserve, to hold or keep in any particular state or condition. With this all the lexicographers agree. And in Warren Hospital for the Insane, 3 Pa. Dist. Rep. 223,' 15 Pa. C. C. Rep. 83, Mr. Attorney General Hensel, adopting accepted dictionary definitions, declines to expand the term “maintenance” in a statute making an appropriation into “enlargement, addition, improvement or construction. Much less can it be permissible to do so in the case of a statute enacting exemptions from taxation: Academy of Fine Arts v. Philadelphia County, 22 Pa. 496; Com. v. Lackawanna Iron & Coal Co., 129 Pa. 346, 356.
    And now, August 27, 1907, this cause came on to be heard upon exceptions filed by plaintiffs to the decision thereof filed January 10, 1907, and was argued by counsel, and thereupon, upon consideration thereof it is ordered, adjudged and decreed (1) that the said exceptions be dismissed, and (2) that the plaintiffs' bill be dismissed with costs.

      Error assigned was decree dismissing the bill.

      O. C. Bowers, with him Bonbrake & Zacharias and Walter & Gillan, for appellants,
    cited: Episcopal Academy v. Phila., 150 Pa. 572; Donohugh’s App., 86 Pa. 306; Fire Ins. Patrol v. Boyd, 120 Pa. 624; Phila. v. Women’s Ass’n, 125 Pa. 572; Phila. v. Penna. Hospital for the Insane, 154 Pa. 9; Phila. v. Jewish Hospital, 148 Pa. 454; Burd Orphan Asylum v. School District, 90 Pa. 21; Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252; Phila. v. Barber, 160 Pa. 123; Pocono Pines Assembly, etc. v. Monroe County, 29 Pa. Superior Ct. 36.

      M. W. Jacobs, with him T. Z. Minehart and George A. Kyner, for appellees.

      April 20, 1908:
   Opinion by

Rice, P. J.,

The general question involved in this case is whether this institution of learning is “a purely public charity,” within the meaning of the constitution, which was “founded and endowed,” and during the period of taxation covered by the suit, was “maintained, by public or private charity,” within the meaning of the statute. The principal decisions of the Supreme Court pertinent to the branch of the subject to which the arguments of counsel have been particularly directed, have been reviewed by this court in Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252, and Pocono Pines Assembly, etc. v. Monroe County, 29 Pa. Superior Ct. 36, and in the able opinions filed by Judge Enblich in the present case. We will not go over the entire ground again; in view of his discussion of the subject We may safely start with the case of Episcopal Academy v. Philadelphia, 150 Pa. 565. Indeed, we need not go outside of that case, for none, either before or since, has gone farther in the direction of holding the exemption to apply to an institution of learning which is supported by the fees received from students. That case decides that an institution that is in its nature and purpose a purely public charity does not lose its character as such under the tax laws, if it receives a revenue from the recipients of its bounty sufficient to keep it in operation. We quote from the opinion: “In the case before us the donors parted absolutely with what they gave. It was devoted to a charitable use and the title placed in the trustees. The trustees have invested it in a plant adapted to the purposes of the trust. By the use of this plant they are enabled to conduct ■a school that gives educational advantages to some free, and at a low cost to all, and thus make the charity pay the expenses of its own administration.” Grant that all this may be said of the institution in question — although it is worthy of notice that the number of free scholars compared with the number of those who pay is very small — the parallel between the two cases ceases when it is shown that the sums paid by students have been sufficient, not only to pay the annual expenses of maintaining the institution, but to yield a surplus which for the past five years has averaged about $9,000 per annum. How, then, can it be said in this case as it was in that, that it is a charity, conducted with a view to furnish education “at its actuhl cost” to a great number of youths who otherwise might be required to pay more for it or forego it altogether? Observe further that this is not a case where there has been an occasidnal'annual surplus, but more often an annual deficit, as in Philadelphia v. Pennsylvania Hospital, 154 Pa. 9, but a case where, for a long -period of years, there has been uniformly a considerable-surplus. If it were a private school, it would be appropriate' to speak of it as a profitable educational enterprise. It is contended, however, that the mere fact that there has'been ’and is likely to continue to be such annual surplus over the cost of the education furnished does not distinguish the- case from the Episcopal Academy case. True, the report of that 'case shows that all receipts from students and income from 'property given to or purchased- by the corporation, after paying éxpenses, were applied to increasing the number of fréé scholars, but it does not appear that there was a surplus over cost of maintenance derived from student charges alone. Again,'the suiplus so derived in the present case was not so applied as'to increase the number of free scholars, or to reduce tuition fées in the future; on the contrary, to quote from Judge Endlich’s-opinion, “Instead of going down with the increase of revenues, the charges at the Mercersburg College have gone up, and there has been no proportionate increase in the number of students received gratuitously.” But it is said that this distinction is not substantial, because the surplus thus derived from the sums paid by students goes into the betterment of the School, the extension and improvement of its grounds, build-Trigs' arid equipment,- and the augumentation of its facilities Md efficiency as an educational institution. This, say counsel, is as truly and' effectually “in furtherance of the education of youth/’ as is the reduction of tuition fees and the increase of the number of free scholars, and therefore the case is within the'doctrine of -that part of the opinion in the Episcopal Academy case'in which Justice Williams says, that “so long as the trustees of the school manage it as-a charity, giving the benefit of what might otherwise be profit to the reduction of tuition fees or the increase of the number of free scholars, in furtherance of the education of youth, the corpus of the trust, the schoolhouse, is entitled to exemption.” This remark, even considered apart from the context, is not tantamount- to de-^ ciding that if what otherwise would be profit be, applied in furtherance of the education of youth, no matter in what form, the corpus of the trust, the schoolhouse, is exempt from taxation;- nor is it equivalent to saying that, although the tuition fees' and other student charges are so regulated as to maintain the school and to create a surplus, the land and buildings are exempt, provided the surplus is applied to the acquirement of other lands and buildings for the aecommodatiqn of an increased number of students, with the probable result, [f not-purpose, of increasing such surplus or profit in future years. But the above quoted remark is not to be considered apart from the context, in which, after referring to earlier cases, the court said: "We are now disposed to go further, and say th^t an institution that is in its nature and purposes a purely public charity does not lose its character as such under the tax laws if it receives a revenue from the recipients of its bounty sufficient'to'keep it in'operation.” But the court immediately added, evidently having in view revenue from the last mentioned- source: "It must not go beyond self-support.” If the tuition fees and other student charges are so regulated as to produce a profit, is that not going beyond self-support? It is impossible for us to show by any satisfactory reasoning that it is not. Again, looking to the decree for the point actually decided, we find that the matter decreed was that the defendant's real estate, used exclusively for school purposes, " is exempt from -taxation under the provisions of the Act of May 14, 1874, P. L. 158, so long as no income is derived from it by the contributors or by the corporation other than that necessary to make the charity self-sustaining.” This seems to imply that if in the future the income derived from student charges alone should exceed the amount necessary to maintain the institution, the lands and buildings would not- be exempt. That this is'the interpretation which the Supreme Court has placed upon .the -decision is shown by the following quotation from the opinion of Mr. Justice Dean in American Sunday School Union v. Philadelphia, 161 Pa. 307, at page 316: “In the case of the Episcopal Academy v. Philadelphia, 150 Pa. 565, this court went to the outside limit of liberality in construction of the constitution. The school was founded and endowed by public and private charity; the rates of tuition were adjusted with a view to make the school self-sustaining; a majority of the pupils paid full rates, a small number half rates, and a still smaller number nothing. It was held to be a purely public charity, because its revenues only made it self-supporting, but it was distinctly intimated that if the revenues had gone beyond the line of self-support it would not have been exempt.” The same doctrine was emphatically reasserted in White v. Smith, 189 Pa. 232, and applied by this court in Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252. We have endeavored to show that thp contention of appellant’s counsel, thus far considered, is opposed to the doctrine of the adjudicated cases. Even if the question had not been authoritatively decided, the court below has made it clear, that if a surplus over cost of maintenance is derived from payments made by students, the institution can not be said to be maintained by public or private charity, even though the surplus be used to enlarge the institution by the purchase of additional lands and the erection of additional buildings — particularly if it be not shown that without such enlargement the institution could not be maintained.

The court found as a fact that the rental value “ of the entire property” is such that if it be added to the expense of maintaining The college, the total would more than wipe out the clearings of any year, but concluded as matter of law that in determining whether there was a surplus over the cost of maintenance the rental value should not be included in the latter. It appears that the entire property of the corporation includes land and buildings not now in use as part of the college, from which an income is derived by renting part of it, and by cultivation of another part as a truck patch. See fourth and fifth findings of fact. Surely it cannot be contended that in determining the question now under consideration the rental value, i. e., the value of the use of that property for any purpose to which it is adapted, is to be added to other expenditures. But, assuming for the purpose of this case, that the court in finding as above as to the rental value of the “entire property” did not intend to include the property of which we have just spoken, we still think he was right in his legal conclusion. To conclude otherwise we would be driven to holding that the point of self-support from income derived from students is not passed until such income alone is larger than is needed, not only to pay all the expenses of conducting the charity, but also to put into the treasury of the corporation a sum equivalent to what could be derived by renting the lands and buildings for any purpose to which they are adaptable. This would be little different in principle from saying that a charity is not self-sustaining, until the income derived from those who enjoy, its benefits is sufficient to pay the expenses of conducting it, and to give to the corporation a fair return upon the capital invested in its foundation and endowment. Either proposition' would be a distinct and unwarranted advance beyond the doctrine of any of the cases above cited, and neither is sustained by the decision, interpreted in the light of the facts of the case,in Philadelphia v. Pennsylvania Hospital, 154 Pa. 9. We will not prolong this discussion. The learned judge betow has treated this subject adequately and, to our minds, convincingly. So far as this question is concerned we rest our judgment upon his opinions without attempt on our part to further elucidate the subject.

In view of the foregoing conclusions, it is not necessary to decide or discuss the question of jurisdiction raised by appellees’ counsel.

The decree is affirmed at the costs of thé appellant.