text:
    Christie’s Estate.

      Husband and wife — Contract—Postnuptial agreement — Consideration.
    Where a husband by his brutal conduct and intemperate habits has given his wife legal ground to leave him, and to institute proceedings for her support and for the protection of her inchoate rights of dower, and the wife is about to leave, when the husband offers her a note for $1,000 if she will remain and continue the marital relation, and the ■wife accepts, the note is based on a good consideration, and the wife may collect it from her husband’s estate after his death.
    Argued Nov. 12, 1907.
    Appeal, No. 247, Oct. T., 1906, by William C. Whiteside, testamentary guardian of David C. Christie, from decree of O. C. Lancaster Co., April T., 1904, No. 40, dismissing exceptions to adjudication in Estate of William J. Christie, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Smith, P. J., filed the following opinion:
    A note for $1,000, with interest, held by the widow against the testator was allowed, as was also" a claim for the balance of her exemption. These awards are assigned as error and are the subjects of exceptions.
    The widow was the testator’s second wife and is the mother of his two surviving infant daughters. By a previous marriage he had a son, David C. Christie, to whom, saving $50.00 to each of the little girls, he gave and devised his estate subject to a charge for the use of his widow during life. She elected to take against the will. The testator was a drunkard, abused his wife and dissipated much of his estate. Her protests failing of good results, she threatened to leave him, and, when arranging to take her departure, he offered her $1,000 that peace and harmony might be established and in consideration that she remain with him and care for his home and family. She accepted the offer. The note was given, and she was faithful unto the end. This was a fair and open postnuptial agreement, entirely free from fraud and concealment, supported by an adequate consideration.
    In Fennell’s Estate, 207 Pa. 309, Mr. Justice Fell said: “If this agreement had been made in the contemplation of an actual and immediate separation even before the act of 1893, there could be no doubt of its validity: Dillinger’s Appeal, 35 Pa. 357; Hitner’s Appeal, 54 Pa. 110; Commonwealth v. Richards, 131 Pa. 209; Scott’s Estate, 147 Pa. 102. While the common-law disability of a married woman remained, except as modified by statute, her contracts when unobjectionable might be enforced through the medium of equity. Equity for some purposes regarded husband and wife as distinct persons, capable of contracting with each other, notwithstanding their legal unity: Williams’s Appeal, 47 Pa. 307. In Burk-holder’s Appeal, 105 Pa. 31, a postnuptial contract to settle differences between husband and wife which had led to their separation, and the object of which was to adjust their property rights in order that they should thereafter live together in peace and harmony, was upheld on the ground that it was enforceable in equity. That a separation is provided for in an agreement between husband and wife goes to the consideration only and does not affect her power to contract. If there was any doubt before on this subject, it was settled by the act of June 8, 1893, which gives to a married woman the same right and power that any other person has to acquire, possess, control and dispose of any kind of property in possession or expectancy, and to make any contracts that may be necessary, appropriate or advantageous to the exercise and enjoyment of the rights and powers granted, excepting only certain contracts named.”

      July 15, 1908:
    The payment of this note is opposed on the ground that there was no consideration for it, that it was a gift which was revoked by the death of the testator; but what the objection is to the payment of the balance of the widow’s exemption we have not been able to learn. It was claimed that $285.50 of the exemption was owing, to which at the time no objection was made, and it was “admitted that the balance of the widow's exemption is in the balance in the account.” The award was made accordingly. Exception dismissed.

      Error assigned was in dismissing exceptions to adjudication.

      B. F. Davis, for appellant. —
    There was no consideration for the note: Luken’s App., 143 Pa. 386; Merrill v. Peaslee, 146 Mass. 460; 16 N. E. Repr. 271; Vanderbilt v. Schreyer, 91 N. Y. 392; Wimer v. Worth Twp., 104 Pa. 317; Stoutenburg v. Lybrand, 13 Ohio, 228.

      II. Frank Eshleman, for appellee,
    cited: Fisher v. Filbert, 6 Pa. 61; Burkholder’s App., 105 Pa. 31; Wilen’s App., 105 Pa. 121; Board of Foreign Missions v. Smith, 209 Pa. 361.
   Opinion by

Rice, P. J.,

The question involved in this case, and the pertinent facts are clearly and concisely set forth in the opinion of the learned judge below and need not be recited here. The learned judge’s findings of fact, particularly the part of them quoted in the second assignment of error, are questioned by the appellant’s counsel, who claims that they are not supported by the evidence. While the evidence is not very full yet we are unable to say that it was not sufficient to warrant the judge’s findings.

The appellants’ counsel asserts the general proposition that when a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity; such promise adds nothing to and takes., nothing from the original obligation. He also cites the case of Kesler’s Estate, Luken’s Appeal, 143 Pa. 386, as showing an application of that principle in a manner which makes it a controlling precedent in the present case. Looking at the facts of that case, as they were evidently assumed to be by the Supreme Court, the point decided was that where a wife, having no other cause of complaint against her husband, was dissatisfied with their valid and binding antenuptial contract, and in consequence voluntarily estranged herself from him, his undertaking to revoke the marriage settlement, if she would resume marital relations with him, was not binding, since the agreement amounted to neither a valuable nor a meritorious consideration, it being her legal duty to resume such relation. To show that we have not misapprehended the question arising upon the facts of that case we quote from the opinion of Mr. Justice Sterrett. Speaking of the revocation he said: “The sole inducement was the doing of that which Mrs. Kesler was legally bound to do. She had voluntarily estranged herself from her husband, because of her dissatisfaction with the antenuptial contract; there is no pretense that she had any other cause of complaint. If, as has been shown, that was a valid and binding contract, the estrangement was without justification; it was a wanton abuse of the marital relation for mercenary purposes, and reconcilement was her duty. Public policy forbids that the performance of such duty may be made the subject of barter and sale.” Nothing can be clearer than that the learned justice was speaking of a case where the performance of a legal duty was set up as a consideration for a promise. But suppose the husband’s conduct has been such as to legally justify the wife in leaving him, and in instituting proceedings to enforce her right to support, and to restrain him from wastefulness due to his intemperate habits, and thus to some extent protect her inchoate right of dower, and other vested pecuniary rights, surely it cannot be said that she does no more than her legal duty if she remains with him, or returns to his household and the labors incident to the care of it by a wife, induced by his written obligation to pay her a sum of money that will be some protection to her. Whatever other objection may be urged against such a contract, we think it cannot be held that the general proposition of law stated at the outset of this opinion controls this case. The distinction between a promise upon consideration that a wife will continue or resume marital relations with her husband, when in doing so she will be simply doing her duty, and one where she is legally justified in separating herself from him is thus pointed out by Mr. Justice Paxson in Burkholder’s Appeal, 105 Pa. 31: “Nor does it appear that the wife was in duty bound to return to her husband. This would be so had she left him without sufficient cause. If, however, the husband’s conduct had been such that she was legally justified in leaving him, she would have the right to remain absent, and her agreement to return would be a sufficient consideration to support a contract. We have the admission in the agreement in question that it was these differences between them ‘which caused the said Julia to leave her said husband.’ This impliedly leaves the blame at his door, and his contract for her return is such an admission of the sufficiency of the cause of her leaving as to throw the burden of proof upon those who assert the contrary.” This doctrine would sustain the decree in the present case, and while there is not unanimity of opinion upon the question there are other well-considered decisions of the courts of other states sustaining the position taken in Burkholder’s Estate. Many of these will be found collected in a note to Oppenheimer v. Collins, 60 L. R. A. 406. See also Moayon v. Moayon, 60 L. R. A. 415 and notes, also Reamey v. Bayley, 7 Sadler’s Reports, 239; Frank’s Estate, 195 Pa. 26; Fisher v. Filbert, 6 Pa. 61. It is true it was said in Kessler’s Estate that the question in that case did not arise in Burk-holder’s Appeal, and there are certain expressions in the opinion of Mr. Justice Sterrett which tend to sustain the appellants’ contention that such a contract is contrary to public policy and void on that ground. Nevertheless, as we have already pointed out, the facts of that case did not require a decision of that question and we are unable to say that the decision in Burkholder’s Estate was distinctly overruled. Its authority, at least for certain purposes, was distinctly recognized in the opinion of Mr. Justice Fell in Fennell’s Estate, 207 Pa. 309, from which the learned judge below quotes. Viewing this note in the light of the circumstances, it is fairly inferable that it was given not merely in consideration of the wife’s condonation of her husband’s conduct, but to protect her in pecuniary rights, which by reason of his habits and con-, duct were in peril. It is true she speaks of the note as a gift in answer to a question of appellants’ counsel. But it is apparent by that that she meant no more than that he was not legally bound to treat with her upon the subject and to give her such an obligation. While the case is not free from doubt, the majority of us are of opinion that the prima facie obligation arising from the giving and possession of the note and the attendant circumstances has not been overcome.

Therefore, the decree is affirmed at the costs of. the appellants.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Millert v. Augustinian College, Appellant.

      Master and servant — Wrongful discharge — Receipt in full — Question for jury.

    Where an employee upon being wrongfully discharged before the expiration of his term, accepts under protest a check marked “in full,” and subsequently adds the words “to date” giving date, in a suit subsequently brought to recover the balance of salary due, the question as to the meaning of the words “in full,” is for the jury.
    An employee who is wrongfully discharged, is prima facia entitled to recover the stipulated compensation for the whole term, if it appears that he honestly endeavored to secure employment during that period, and as honestly failed.
    In such a case where the jury returned a verdict for an amount considerably less than the stipulated compensation, the appellate court will not reverse the judgment because the trial judge while instructing the jury not to allow interest as such, told them that they might allow plaintiff anything up to six per cent by way of detention of the money.
    Argued Nov. 19, 1907.
    Appeal, No. 23, Oct. T., 1907, by defendant, from judgment of C. P. Del. Co., Dec. T., 1904, No. 49, on verdict for plaintiff in case of Edgar B. Millert v. Augustinian College of Villanova.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit to recover for breach of a contract of employment. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following points:
    16. If you find for the plaintiff, the measure of damages will be the sum stipulated in the agreement, with interest from the date of discharge to the date of the expiration of the contract.
    The Court: Was he entitled to all of it at that time?
    Mr. Bradbury: I understand that to be the law here, with interest.
    The Court: He was to be paid monthly?
    Mr. Bradbury: I may not be clear on that.
    The Court: I am not inclined to affirm that. I think I will say to you, gentlemen, that if you find for the plaintiff he will be entitled to the monthly pay which he was to receive and interest from the date at which they were due until the date cf your verdict. Not entitled to interest due, but that you may allow him anything up to six per cent for its detention. Not interest, as we said a moment ago. That was a slip. But you may allow him anything up to six per cent by way of its detention. [1]
    17. It is admitted that the plaintiff was to receive $900 for the school year of nine months, and was to board himself outside of the institution. He has- received $140, so that the amount of your verdict will be the difference between $140 he received and $900, which is $760, with interest on same. Answer: That is affirmed if you find for the plaintiff. [2]
    Defendant presented this point:
    1. The acceptance of the check of November 19, 1904, marked “in full,” is to be treated as an accord and satisfaction, and there can be no recovery in this case. Answer: This is refused. That is a question for the jury under all the evidence. That point means this, gentlemen: You will remember that when the final check of $50.00 was given to the plaintiff it had on it “in full,” and the defendant asks us to say to you, as a matter of law, that receiving that check in full was an acknowledgment that that was all that was due him, and that, therefore, you will not be permitted to find in his favor.' 'We submit that question to you. As the court remembfersy that-transaction was something like this: After the plaintiff-had' been informed that his services were no longer needed, or was discharged, that Dr. Delurey tendered to him in cash, if T remember, notes, $50.00, and requested him to sign a receipt'in full, and that the doctor then or soon after, the court does not' recollect how soon after, handed him this check to his order-marked “in full.” He says when he went to use it — I am not1 sure just when he discovered it, but before he used it he marked on the back of it, “in full to November 19, 1904,” indorsed his name on it and drew the money from the bank. Now, it will be for you to say whether he did receive that check in full payment or not. You will remember that he refused to sign a receipt in full, and took the check, and he says, if I remember, because of his circumstances he could not wait and had to have the money, and he indorsed this on the back and drew the money, so that it will be for you to say whether under all the evidence in the case he did accept that check in full. [5]
    Verdict and judgment for plaintiff for $460. Defendant appealed.

      Errors assigned were (1, 2, 5) above instructions, quoting them.

      Wm. B. S. Ferguson, with him John A. Ward and V. Gilpin Robinson, for appellant. —
    The check was on accord and satisfaction: Christman v. Martin, 7 Pa. Superior Ct. 568; Benseman v. Ins. Co., 13 Pa. Superior Ct. 363; Gas Co. v. Johnson, 123 Pa. 576; MacDonald v. Piper, 193 Pa. 312; Rhoads’s Est., 189 Pa. 460; Harris v. Hay, 111 Pa. 562; Dougherty v. Hunter, 54 Pa. 380; Phillips v. Meily, 106 Pa. 536; Crawford v. Oil Co., 189 Pa. 415; Flynn v. Hurlock, 194 Pa. 462; Laughead v. Frick Coke Co., 209 Pa. 368; West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642.
    The measure of damages in an action for breach of a con-' tract of employment is the actual damage proven by plaintiff to have been sustained by him, and the learned trial judge should have charged the jury' that if they found for plaintiff they should allow him such damages, and it was error on his part to stipulate to the jury what the amount of their verdict should be if they found for the plaintiff: Nixon v. Myers, 141 Pa. 477.
    July 15, 1908:
    While lapse of time is ordinarily a proper subject for the consideration of the jury in making up the amount of damages for which their verdict should be rendered, it is well settled that interest eo nomine is not recoverable in actions for damages: Reading & Pottsville R. R. Co. v. Balthaser, 126 Pa. 1; Richards v. Citizens’ Natural Gas Co., 130 Pa. 37; Provident Life and Trust Co. v. Philadelphia, 202 Pa. 78; Penna. Schuylkill Valley R. R. Co. v. Ziemer, 124 Pa. 560; Emerson v. Schoonmaker, 135 Pa. 437.

      Charles R. Bradbury and Fred T. Pusey, for appellee.
   Opinion by

Orlady, J.,

This suit was brought by the plaintiff to recover the balance due on a contract made with the defendant, for services to be rendered as a teacher of languages in the defendant college, at a salary of $900 for the school year.

After rendering services for two months, and after receiving $140 in money, the plaintiff was discharged, the reason for such action by the college being that he was inefficient. The circumstances attending his discharge were described by the president of the college as follows: “In view of the fact that I had discovered him to be inefficient, I felt that was the termination, or cause for the termination of the verbal contract into which we entered in New York, and/ secondly, paying him in full for the time, on the basis of the year, paying him for the time he was there, I felt that I was giving him all that was justly due.”

The last payment of $50.00, was paid by a check dated November 19,1904, drawn to the plaintiff’s order, and marked “in full,” which was paid November 23, 1904, and which on examination 'by the maker was discovered to be indorsed “In full to date, Nov, 19, 1904.” The form of this indorse-meat was not known by the defendant until some time' after the check had been paid. At the time the check was given, payment in money was demanded by the plaintiff and refused because it was accompanied by a demand that the plaintiff should sign a receipt in full for all demands. The check was accepted under protest and the plaintiff alleges, that having no other source of income he was obliged to have it cashed, and, further, that he made an honest effort to secure other employment within the term mentioned in his contract, and failed. So that during that time he did not earn a penny. His claim was for the difference between $900, the annual salary, and $140 which he received, or $760 with interest. The verdict was for $460 in his favor. After a full review of the law and the facts, the court refused a motion for a new trial, as well as a motion for judgment notwithstanding the verdict.

It does not appear that any complaint or objection was made to the plaintiff’s performance of his contract until the day of his discharge, hence he was entitled to the amount of money represented by the check, whether he remained in the institution or not. His right to recover in this action is independent of his right to receive the $50.00 then paid to him. No services were rendered after that payment, and there is no question of a compromise of a disputed claim, or of an actual acceptance of a smaller sum as an accord and satisfaction: Martin v. Frantz, 127 Pa. 389. In Benseman v. Insurance Company, 13 Pa. Superior Ct. 363, the effect to be given to a check or receipt marked with the words.“in full” is elaborately considered, and the principles of law there announced are applicable to the present case. There was no relation of trust or confidence between the parties. There was a controversy between them. They were dealing at arm’s length. The plaintiff was loath to leave the employment. The defendant insisted that he should do so on account of his inefficiency. There was no attempt to adjust the plaintiff’s claim for the balance of the year. The check given him, marked “in full” has no special significance other than the interpretation put upon it by the plaintiff’s indorsement, “in full to Nov. 19, 1904,” and there is not a suggestion in this record that he accepted and used it with any other view than that it was a payment in full for services rendered to that date. There was no explanation as to what the term “In full” signified, and in the absence of such explanation, the meaning was properly left to the jury: Rhoads’s Estate, 189 Pa. 460.

As said by the court, “What his understanding about it was, will be for the jury to say under the circumstances, whether he took it in full.” The making of the contract and its partial performance are not in dispute, the defense being limited to its claim of the plaintiff’s inefficiency, and the right to discharge him for that reason. In this, the burden of proof was on the defendant to satisfy the jury that its reason for discharging the plaintiff was good; this fact having been fully submitted, as presented in the third assignment of error, it must be considered as properly determined against the defendant. And so, too, the court properly and fairly submitted to the jury the question of the plaintiff’s efforts to secure employment during the balance of the year, and his duty to procure other service if he could.

The employment was for a determinate period, and if thé plaintiff was improperly dismissed before the term of service had expired — and this fact was so determined by the verdict— the plaintiff was prima facie entitled to recover the stipulated compensation for the whole term if it appears that he honestly endeavored to secure employment during that period and as honestly failed: King v. Steiren, 44 Pa. 99; Wilke v. Harrison Bros. & Co., 166 Pa. 202; McDowell’s Appeal, 123 Pa. 381.

The jury was specially cautioned not to allow interest as such on the plaintiff’s claim, if they found in his favor, but was instructed “you may allow him anything up to six per cent by way of its detention,” which, in the light of the verdict, was not harmful to the defendant. In this there was no error. The assignments of error are overruled and the judgment is affirmed.


author: Rice, P. J.,

text:
    Ripka v. Mutual Fire Insurance Company of Annville, Appellant.

      Appeals — Practice, Supreme Court — Evidence—Judge’s certificate of approval — Diminution of record.

    Where the transcript of the notes of testimony and charge are properly certified, approved and filed, but a carbon copy of the transcript without the judge’s approval noted thereon, is sent up with the record, the appellant may after motion to quash, bring up the original transcript with the approval of the court below, and file it with the record with the approval of the appellate court; and the result of such action will be the same as that which would have been reached by the more formal proceeding of suggestion of diminution of record.

      Appeals — Practice, Supreme Court — Bond—Filing bond — Approval of bond.

    Where a bond in appeal is marked and filed by the prothonotary of the court below, and no objection is made to the bond in the court below, the appellate court will not entertain a motion to quash because the record does not affirmatively show that the bond was approved by the prothonotary in the court below. The fact that the prothonotary personally filed the bond and attested that act by his own signature raises the presumption that he approved the bond.

      Appeals — Paper-book—Statement of question involved.

    A “statement of question involved” covering about seventeen lines of appellant’s paper-book, does not violate the rule as to length.

      Appeals — Assignments of error — Evidence—Nonsuit—Distinct rulings.

      . Assignments of error to the admission of evidence will be dismissed where the evidence admitted under the offers is not quoted in the assignments, and no reference is made to the page of the paper-book where it may be found.
    The overruling of a motion for compulsory nonsuit is not assignable for error.
    A specification of error relating to two distinct rulings does not conform with rule XIV.

      Insurance — Fire insurance — Principal and agent — Estoppel.
    An agent duly authorized to bind his company by contract for insurance may make contracts by parol which will be binding on the company before the issuing of the policy, unless there be specific charter requirements that such or all insurance contracts shall be in writing. But in such case the contract and the authority of the agent must be satisfactorily proved. A mere statement by the plaintiff that he knew that a particular person was the agent of the defendant, an insurance company, is not sufficient to establish the agency.
    Where an application for fire insurance shows on its face that the issuing of a policy depended upon the approval of the application by the company, the mere acceptance of the application and a small fee thereon by a soliciting agent without authority to approve the policy, will not, without more, establish a contract binding on the company to issue a policy, or subjecting it to liability for loss by fire pending the company’s action upon the application.
    No estoppel can arise either from an insurance company’s failure to act upon and formally reject an application, or from the failure of the company’s soliciting agent to forward the application to the company, where, before either of these things can be done, the property is totally destroyed by fire, and the soliciting agent immediately tenders to the applicant the policy- fee he had paid.
    Argued Oct. 30, 1907.
    Appeal, No. 108, Oct. T., 1907, by defendant, from judgment of C. P. Centre Co., Nov. T., 1905, No. 51, on verdict for plaintiff in case of Ezra C. Ripka v. The Mutual Fire Insurance Company of Annville.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a contract of or for insurance.
    The plaintiff’s statement of the question involved was as follows:
    The question involved is, whether the plaintiff, who signed an application for a policy of insurance upon his dwelling house, in the Mutual Life Insurance Company of Annville, Lebanon county, Pa., about five o’clock p. m., Saturday, June 10, 1905, and paying simply the application fee of $2.50, and there being no mail from that community by which the said application could be sent to the company for its acceptance or rejection until about eight o’clock a. m. of June 12, 1905, and before the application could be sent the premises for which the application had been made was destroyed by fire, of which the agent who was authorized simply to receive applications for insurance, was duly notified, can recover for the loss? Was there any negligence on the part of the company, or its agent, because the agent did not forward the application, after he had knowledge of the destruction of the premises by fire, before it was possible to have forwarded the application by mail, simply to have the company reject the application pro forma, as would bind the company and make it liable?
    The facts of the case are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $519. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      John G. Love, with him C. V. Henry, for appellant. —
    There may be a parol contract of insurance to protect the assured between the taking of the risk and issuing the policy; but the company must have made the contract and it must be clearly established.
    When made by an agent, his power to bind the company must clearly appear: Patterson v. Ins. Co., 81* Pa. 454; Keystone Mattress and Spring Bed Co. v. Pittsburg Underwriters of Penna., 21 Pa. Superior Ct. 38; Ins. Co. v. Johnson, 23 Pa. 72; Wood on Fire. Insurance, 15, 16.
    There was no negligence on the part of Mr. Breon nor on the part of the company: Harp v. Ins. Co., 49 Md. 307; Royal Ins. Co. v. Beatty, 119 Pa. 6; Pickett v. Fire Ins. Co., 39 Kansas, 697 (18 Pac. Repr. 903).

      W. D. Zerby, with him S. D. Gettig and John J. Bower, for appellee. —

      July 15, 1908:
    (.A promise lacking mutuality at its inception becomes binding upon the promisor after performance by the promisee: Willets v. Sun Mutual Ins. Co., 6 Am. Rep. 31.
    Where a contract for insurance was duly entered into between an applicant for insurance and the insurance company and the property to be covered by the policy for which the contract calls is destroyed by fire, the insurance company will not be relieved from ,the performance of said preliminary contract or contract for insurance by reason of the destruction of the property: State Fire & Marine Ins. Co. v. Porter, 3 Grant’s Cases, 123; Smith v. Sugar Valley Mutual Fire Ins. Co., 5 Pa. Dist. Rep. 336.
   Opinion by

Rice, P. J.,

A transcript of the notes of testimony and charge, properly certified by the official reporter, and approved by the trial judge in the form prescribed in rule VI, was duly filed in the office of the prothonotary of the common pleas, and, together with the above certificate and approval, is printed in the appellant’s paper-book. But it appears that, instead of this transcript, a carbon copy of it, which, though certified by the stenographer and filed in the office of the prothonotary of the common pleas, was not certified by the judge, was sent up with the record. Attention having been called by the appellee’s motion .to quash the appeal to this omission in the copy returned to this court, the prothonotary of the common pleas, at the request of appellant’s counsel, and with the approval of the trial judge, immediately certified and sent up the original and properly approved transcript. Upon filing these papers in the office of our prothonotary, which we now direct, the same, result is reached that would have been reached by the more formal, proceeding of suggestion of diminution of record. Therefore, the second reason assigned in support of the motion to quash must be overruled.

The appeal was taken in May, 1907, and on the back of the certiorari, which was returnable in October, the prothonotary of the common pleas certified the names of the two sureties and the amount of the bond and sent up the bond with the record. It is in due form, it was filed within twenty-one days after judgment, and has indorsed thereon the words “Filed May 13, 1907, A. B. Kimport Pro.” No objection to the bond was made in the court below, and the only objection raised against it in the motion to quash is that the record does not affirmatively show that it was approved by the prothonotary of the common pleas. It is not alleged that it was not approved by him, and the statute does not expressly declare that the indorsement of his approval upon the bond itself or writing it in the record is a condition precedent to the right of appeal. In answer to the appellee’s motion to quash, the appellant’s counsel obtained and filed with our prothonotary the certificate of the prothonotary of the common pleas “that the omission to endorse a formal approval of the bond in the case was a mere oversight, and I desire that it shall be considered approved as of the date it was filed.” The fifth section of the act of 1897 provides in part as follows: “Except as herein otherwise provided and subject to revision by the court from which the appeal is taken, the prothonotary or clerk thereof shall fix the amount of bail and approve or reject the security offered.” Section 6 provides that an appeal from a money judgment shall operate as a supersedeas if the appellant gives bond with sufficient surety or sureties in double the amount of the judgment and all costs accrued and likely to accrue, etc. And the fifteenth section provides that: “ where a corporation, other than a county, township or municipal corporation, appeals on its own behalf, such appeal shall be quashed, unless bail is given to operate as a supersedeas as by this act required.” The point decided in Denlinger v. Conestoga Electric Light & Power Company, 32 Pa. Superior Ct. 418, is correctly stated in the syllabus as follows: “Where on an appeal by a business corporation from a money judgment, the record shows that objection was made to the appeal bond, and that no other bail was offered, and that the bond was not approved by the prothonotary, the appeal will be quashed.” The differences between that case and this are substantial. There, as appears in the opinion, the indorsement on the bond showed affirmatively that the sufficiency of the bond and surety was objected to and that the bond was not approved. In this case no objection was made in the court below or here, to the form, or amount, or the execution of the bond, or to the sufficiency of the sureties; and it is not shown by the record nor alleged in the appellee’s motion that it was not approved. It being the duty of the prothonotary to “approve or reject the security offered,” the fact that he personally filed the bond, and attested that act by his own signature, not only precludes conjecture that he- rejected the security offered, but raises a natural presumption that he approved it, which presumption ought to prevail upon a hearing of a motion to quash the appeal, unless the contrary is alleged by the appellee or is indicated by the record. Taking this view of the question, it is unnecessary to consider the supplemental certificate of the prothonotary above- referred to.

The appellant’s statement of the question involved is such as to carry out the design of the rule upon that subject, namely, to enable the court to obtain an immediate view of the nature of the controversy. It does not violate the rule as to length, and although two dates are mentioned, no confusion or obscurity arises therefrom, although it must be said that it was not absolutely necessary to mention them in order to present the question for decision. We are not disposed to relax the rule, but the departure from it in this case is so slight as to be within the principle de minimis. It is to be observed further that the paper-book was prepared before the recent announcement of the Supreme Court upon the subject.

The' first and second specifications of error are dismissed, because the evidence admitted under the offers is not quoted in the assignments, and no reference is made to the page of the paper-book where it may be found: Rule XVI. The third specification is dismissed, because the overruling of a motion for compulsory nonsuit is not assignable for error. The sixth specification relates to two distinct rulings, first, the reservation of a question of law, secondly, the entering of judgment in favor of the plaintiff, and therefore is not in strict conformity with rule XIV. But the controlling question in the case is raised by the fourth and fifth specifications, in which the refusal of defendant’s points for binding instructions are properly assigned for error.

Throughout the plaintiff’s statement of claim the contract upon which he sued is designated as' a contract of insurance. The language is: “The plaintiff .... claims of the defendant .... the sum of $500 with interest, .... according to a certain contract of insurance in writing executed by the said .... plaintiff, and John Breon, agent for the defendant company, on the 10th day of June a. n. 1905; a copy of said contract of insurance is hereto attached and made a part hereof.” But his counsel, after pointing out the distinction between a contract of insurance and a contract for insurance, insisted in their argument here that the evidence established a contract for insurance. As will be seen presently, we need not consider the question of variance. The facts testified to by the plaintiff and his witnesses are substantially as follows: On Friday, June 9,1905, the plaintiff requested one J. H. Breon to come to his place the following day for the purpose of having his, the plaintiff’s, buildings insured. Breon came on the following day, examined and measured the property, and filled the blanks in a printed form so that it became an application by the plaintiff for insurance, to the amount of $500, by the defendant company, against loss or damage by fire, upon the buildings described therein. This application was then signed by the plaintiff and by Breon as agent, but without specifying for whom he was agent, and delivered to Breon.- At the same time the plaintiff paid Breon $2.50. The paper does not show, and there is no direct evidence to show, what this payment was for, but one of the by-laws of the defendant company provides: “Every person signing an application for insurance, if accepted by the company, shall pay one dollar and fifty cents for each policy of insurance granted him or her and the required premium, and no premium so paid shall ever be withdrawn from said company during the continuance of its charter, but shall be considered earned as soon as policy is issued.” It may be inferred, perhaps, that the payment was intended to cover this policy fee, at least, but that the balance or the whole sum was the premium required on such a policy as the plaintiff applied for is' left wholly to surmise. It appears that there was no outgoing mail by which the policy could be sent to the office of the company in Lebanon county until the following Monday morning at eight o’clock, and between five and six o’clock that morning the buildings were totally destroyed by fire. On the same morning the plaintiff notified Breon of the loss, and thereupon Breon tendered him the $2.50 he had paid, which the plaintiff refused to accept. At the same time Breon said to the plaintiff that he had not forwarded the application to the company, and there is no evidence that it was ever forwarded.

It is not disputed that an agent duly authorized to bind his company by contract for insurance may make contracts by parol which will be binding on the company before the issuing of the policy, unless there be specific charter requirements that such or all insurance contracts shall be in writing. But in such case the contract and the authority of the agent must be satisfactorily proved. Upon this subject we refer to Patterson v. Benjamin Franklin Insurance Co., 81* Pa. 454; Keystone Mattress, etc., Co. v. Pittsburg Underwriters of Penna., 21 Pa. Superior Ct. 39; N. Y. Union Mutual Insurance Co. v. Johnson, 23 Pa. 72; 19 Cyclopedia of Law & Procedure, 594, 595. The only evidence we can find of Breon’s authority, or of his being the company’s agent of any kind, is contained in the following excerpt from the plaintiff’s testimony: "Q. State whether you knew what company Mr. Breon represented? A. Yes, sir. Q. For what company did Mr. Breon take insurance? A. The Lebanon Mutual Fire Insurance Company of Annville.” This, without more to show the source of plaintiff’s knowledge, would be insufficient to prove Breon’s authority to bind the company by a parol contract to insure. But it is conceded by appellant’s counsel that he was a local agent with authority to take applications for insurance and forward them to the company for approval or rejection; there is no evidence and no concession of counsel that he was furnished with blank policies to fill and deliver, or that he had any other authority than that above stated. Besides that, we discover no evidence sufficient to support a finding that Breon made an oral contract on behalf of the company that the company would be liable for 'loss accruing before its approval of the application. Therefore recovery on this ground must fail because of lack of proof both as to the contract and the authority of Breon, even though the pleadings were sufficient to sustain a recovery upon an agent’s oral contract to insure.

We turn then to the question whether a contract arose upon the delivery of the application. The application contained a warranty on the part of the plaintiff of the truth of the matters set forth therein, and stipulations or undertakings on his part that he would accept the policy issued thereon and that the application should be considered part of the policy, and, then occurs a clause which it is well to quote verbatim. “For value received and in consideration of a policy of insurance to be issued by the Mutual Fire Insurance Company of Annville, Lebanon county, Pa., upon the approval of my application for insurance in said company, of this date, I promise to pay the said company such sum or sums of money, and at such time or times, as the board of managers of said company may, for the purpose of paying losses by fire and the necessary expenses of said company, require payable within thirty days after date of notice at the company’s home office at Annville, Pa. The policy to bear date and take effect at noon of the said day this application is dated, if approved, unless directed to be dated at a future day.” It is thus seen that by the express terms of the paper the issuing of a policy insuring the plaintiff’s property depended upon the approval of the application by the company, and it is not pretended that Breon had any authority to approve it; and if he had no authority to act for the company in that matter his mere acceptance of the paper could not have the effect of an approval. Again, the right was reserved, even if the application should be approved, to direct when the policy should be dated, and take effect. We need not elaborate further, and we are warranted in saying that there is not a clause or a word in the application which by any sort of reasoning can be construed as binding the company to issue a policy, or as subjecting it to liability for loss by fire pending its action upon the application. The remarks of Lowrie, J., in New York Union Mutual Insurance Co. v. Johnson, 23 Pa. 72, are pertinent here. It is argued that it has often been declared that taking a man’s application, fixing the terms, and receiving the premium, are sufficient evidence of an insurance; and so they are, when it thereby appears that the contract is complete, and nothing is wanting but the issuing of the policy. But when, as here, it is plain that the application and payment of the premium amount only to a proposal for insurance, we cannot make a contract out of it.” This is all this paper amounted to at the time it was delivered to Breon.

Nor did a contract of insurance or a contract for insurance arise from the failure of the company to promptly act upon and reject the application. Whether or not such a contract would arise by operation of law from unreasonable delay in notifying the applicant that it was rejected, or, in other words, whether, after unreasonable delay on the part of the company in acting on an application like this, the applicant has the right to assume and the company is estopped to deny that it had been approved, is a question that does not arise upon the facts of this case. No estoppel can arise either from the company’s failure to act upon and formally reject the application, or from the failure of its soliciting agent to forward it to the company, where, before either of these things can be .done the property is totally destroyed by fire and the soliciting agent immediately tenders to the applicant the policy fee he had paid.

We have examined the cases cited by the learned counsel for appellee and do not find that they conflict with the foregoing conclusions.

The motion to quash is overruled; the first, second and sixth assignments are dismissed, the fourth and fifth assignments are sustained, the judgment is reversed and judgment is now directed for the defendant.


text:
    Prouty v. Marshall.

      Mortgage — Scire facias sur mortgage — Record—Prima facie case — Evidence.

    A scire facias upon a mortgage is founded on the instrument itself, not upon the record of it.
    The production of a mortgage duly executed and acknowledged and having indorsed thereon the proper certificate of the recorder, followed by the proof of mortgagor’s default in payment,, the balance due and unpaid, and the terre-tenant’s possession, constitutes a prima facia case for the plaintiff against the terre-tenant. It is not necessary for the plaintiff to produce in chief other evidence of the recording of the instrument, or of the date when it was left for record.
    If a mortgage entitled to be recorded is left with the proper officer for that purpose, and the fees are paid, and is not withdrawn until there is indorsed thereon the recorder’s certificate stating date of entry of record and the volume and page of the mortgage book, and there is nothing to show why the mortgagee should not rely upon such certificate, his lien will be protected against a subsequent purchaser without actual knowledge of its existence, although by mistake of the recorder or his clerk, the name of the mortgagor is not correctly transcribed in the mortgage book nor in the mortgage book index.
    Argued Oct. 29, 1907.
    Appeal, No. 71, Oct. T., 1907, by A. A. LaRue, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 115, on verdict for plaintiff in case of Agnes Prouty v. L. J. Marshall and A. A. LaRue, terre-tenant.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage. Before A. 0. Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in overruling motion of defendant for judgment non obstante veredicto on question of law reserved.

      A. L. Coyle, with him L. E. Boyer, for appellant.

      W. C. Pentz, with him W. L. Calkins, for appellee,
    cited: Glading v. Frick, 88 Pa. 460; Clader v. Thomas, 89 Pa. 343; Wyoming Nat. Bank’s App., 11 W. N. C. 567; Stockwell v. McHenry, 107 Pa. 237; Brown’s App., 3 W. N. C. 35; Shebel v. Bryden, 114 Pa. 147; Brooke’s App., 64 Pa. 127; Farabee v. McKerrihan, 172 Pa. 234; Schell v. Stein, 76 Pa. 398.
    July 15, 1908:
   Opinion by

Rice, P. J.,

The issue in this case was between a mortgagee seeking by scire facias to enforce payment of her mortgage and a terretenant, who, more than three years and one-half after the execution and delivery of the mortgage, bought the land from the mortgagor without actual knowledge of the existence of the mortgage. The case comes before us by appeal of the terretenant from the judgment upon the verdict directed in the plaintiff’s favor for the unpaid balance of the mortgage debt; and the single, assignment of error is that the court erred in overruling the defendant’s motion for judgment non obstante veredicto on the reserved questions. The reserved questions, as shown by the judge’s charge, were first, “whether there is any evidence entitling the plaintiff to recover as against A. A. LaRue,” the terre-tenant, secondly, whether under the law and the evidence the terre-tenant’s point for binding instructions should have been affirmed.

It appears that L. J. Marshall executed and delivered to Agnes Prouty a mortgage, dated January 24, 1900, and duly acknowledged on February 5, following, to secure the payment of $1,375, the unpaid purchase money of certain described land in the borough of DuBois, which was conveyed by her to him by deed, of even- date. A certificate, in these words, under the hand and official seal of the recorder of deeds, was indorsed on the mortgage: “ Entered of record Feb. 6th, 1900, by W. C. Pentz. Fees paid $2.50. Recorded in the office for Recorder of Deeds in and for Clearfield County in Mortgage Book No. 7, page 421, etc. Witness my hand and seal of office this 6th day of Feby. Anno Domini, 1900.” A scire facias upon a mortgage is founded on the instrument itself, not upon the record of it: Lancaster v. Smith, 67 Pa. 427; Tryon v. Munson, 77 Pa. 250; Michaelis v. Brawley, 109 Pa. 7. Hence the production of the mortgage duly executed and acknowledged, and having indorsed thereon the foregoing certificate of the recorder, followed by proof of the mortgagor’s default in payment, the balance due and unpaid, and the terre-tenant’s possession, constituted a prima facie case for the plaintiff. It was not necessary for her to produce in chief other evidence of the recording of the instrument or of the date when it was left for record. In saying this we have not overlooked the case of Musser v. Hyde, 2 W. & S. 314, wherein it was held that if there is a dispute as to the date when a deed was left for record, the certificate indorsed on the deed of its having been recorded on a certain date, will not prevail over the short entry indorsed on the deed at the time of its receipt and the entry in the fair or entry book, which show it was left for record at a later date. But in the present case no such discrepancy appears. There being no evidence to impeach the recorder’s certificate, so far as the date is concerned, it is to be presumed therefrom that the mortgage was left for record on or prior to the date of recording as certified by him, and this was more than three years and a half before the appellant bought. He put in evidence his deed dated in August, 1903, and testified that he had no knowledge at the time he bought and paid the purchase money of the existence of this mortgage; and as the burden of proving that he had such knowledge, if the case turned on that question, rested on the plaintiff, and as she offered no evidence upon the subject, the case is in the same situation as it would be if there were a distinct admission by the plaintiff that the terretenant was a bona fide purchaser without actual knowledge of the mortgage. Another point to be noticed in. passing, is that he admitted that no search of the records was made by him or by anyone employed by him before he bought; hence it cannot be said that he was actually misled by them. Nevertheless, he was not precluded by that fact alone from setting up the defense upon which he relied, namely, that the mortgage was not so recorded as to make it constructive notice to subsequent purchasers or mortgagees. This defense was based on the testimony of the present recorder that no mortgage from L. J. Marshall was recorded in mortgage book 7 at page 421 (the book and page mentioned in the recorder’s certificate above quoted) and that the name of L. J. Marshall did not appear in the index of mortgages. But upon cross-examination the witness testified, having the index and the mortgage book before him at the time, that there was an index of a mortgage from S. J. Marshall to Agnes Prouty, for $1,375, on land located in DuBois borough, recorded in mortgage book 7 at page 421; also that in that book and at that page a mortgage was recorded in which the name of the mortgagee is given as S. J. Marshall, but corresponding in other particulars with the mortgage in suit. There is no room for doubt that this was intended to be a record of the mortgage in suit, and that in transcribing the mortgage the recorder or his clerk, by mistake, wrote the letter S as the mortgagor’s first initial, where he should have written the letter L.

It is argued with great vigor by the appellant’s counsel that if his client had made or had caused to be made a search for mortgages against L. J. Marshall, his vendor, he would not have found any; that such a record is valueless as notice to subsequent purchasers and mortgagees of the mortgage given by L. J. Marshall; and therefore they ought not to be affected by it. This is the position taken by the courts of some of the states of the Union. The principle upon which they go is well expressed by Weight, J., in Miller v. Bradford, 12 Iowa, 14, where, speaking of the statutory provision that the deed shall be effectual to import notice from the time of depositing it for record with the recorder, he said: “This statute, in our opinion, was only intended to fix the time from which notice to subsequent purchasers was to commence, not to make such filing or depositing notice of the contents of the deed after the same was recorded. After the recording of the deed, the record itself is the constructive notice of its contents, and it never was the intention of the legislature to hold a subsequent purchaser, buying after the recording, bound by the contents of a deed, ever so improperly and incorrectly recorded, because at some time a deed correct in the description of the property was filed with the recorder.” See also Terrell v. Andrew County, 44 Mo. 309, where the same doctrine is elaborately and vigorously expressed. There are other cases outside this state to the same effect; that is, that the obligation of giving notice rests on the party holding the title, and that if his deed be so incorrectly transcribed in the record as to be valueless as notice, the loss, as between him and a subsequent innocent purchaser or mortgagee, must be borne by the former. But it has been said that in the majority of states, having statutes similar to ours, “the rule is favored by what seems to be the weight of authority that, when the grantee has duly deposited for record a valid instrument at the proper time, in the proper office and with the proper officer, he has performed his whole duty, and subsequent purchasers will be charged with constructive notice, notwithstanding the officer does not properly spread the instrument on the record book or fails to record it at all:” 24 Am. & Eng. Ency. of Law (2d ed.), 114. Pennsylvania is mentioned by this writer, as well as by other text-writers, as one of the states in which this is the rule, and before considering the decisions of the courts of other states it will be well to determine how far that statement is borne out by our statutes and decisions under them. By section 3 of the Act of May 28, 1715, 1 Sm. L. 94, the recorder is directed to certify, after he has recorded the deed, on the back thereof, under his hand and the seal of his office, the day he entered it, and the name and number of the docket or roll, and page where the same is entered. And by section 5 it is provided that all deeds and conveyances, proved or acknowledged and recorded as aforesaid, “whichshall appear so to be, by endorsement made thereon,” according to the true intent and meaning of this act, shall be of the same force and effect here, for the giving possession and seisin, and making good the title and assurance of the said land, as deeds of feoffment, with livery and seisin, or deeds enrolled in any of the King’s c'ourts of record at Westminster are or shall be in the kingdom of Great Britain. By the Act of March 28, 1820, 7 Sm. L. 303, mortgages have priority according to the date of recording the same, without regard to the time of making or executing such deeds; and it is the duty of the recorder to indorse the time upon the mortgage when left for record, and to number the same according to that time, and if two or more are left upon the same day they shall have priority according to the time they are left for record; “and no mortgage or defeasible deed in the nature of a mortgage, shall be a lien until such mortgage or defeasible deed shall have been recorded, or left for record as aforesaid;” but the same section provides that a purchase money mortgage shall not be affected by this act, “ if the same be recorded within sixty days from the execution thereof.”

Passing Luch’s Appeal, 44 Pa. 519, which was overruled in Glading v. Frick, 88 Pa. 460, the next case in chronological order is Speer v. Evans, 47 Pa. 141, wherein, as stated in the opinion, the only legal conclusion the record required the Supreme Court to declare was that actual is equivalent to constructive notice. But there is this dictum of Chief Justice Woodward: “As a guide to inquirers, the index is an indispensable part of the recording, and without it, the record affects no party with notice.” This, however, was questioned in the later case of Schell v. Stein, infra, and was distinctly rejected as an adjudication of the question in Stockwell v. McHenry, 107 Pa. 237.

Brooke’s Appeal, 64 Pa. 127, decided in 1870, arose out of a dispute between two mortgages. The case has an important bearing upon the case before us because, apart from the reasoning of the decision, it turned on the effect of the recorder’s mistake in transcribing the acknowledgment of the first mortgage. In consequence of this mistake, it was made to appear by the record that the mortgage was acknowledged a month before it was executed. It was argued by appellant’s counsel, upon the authority of Heister v. Fortner, 2 Binney, 40, and Solms v. McCulloch, 5 Pa. 473, and other cases, that the registry of a deed defectively proved or acknowledged is not constructive notice to a subsequent purchaser, and that, going by the record of the first mortgage, this principle was applicable. Justice Read, after summarizing the provisions of the act of 1820, said: “The mortgage therefore commences its record and its lien the moment it is left for record and is indorsed by the recorder, and entered upon the recorder’s book, as required by the Act of May 18,1775,1 Sm. L. 422. It may remain there weeks and months, before it is actually recorded, and yet it is record notice to all the world. A regular mortgage entitled to record is a record the moment it is left for record and so continues for all time to come: Musser v. Hyde, 2 W. & S. 314. We entertain no doubt that this record was notice to all the world, and the auditor has found that the appellant had also actual notice of the mortgage.” Justice Read further distinguished Solms v. McCulloch, supra, by showing that there the original mortgage itself was dated after the acknowledgment, whereas in the case before him the defect was not in the acknowledgment, but in the transcribing of it in the mortgage book.

In Schell v. Stein, 76 Pa. 398, decided in 1874, the action was ejectment between a purchaser at sheriff’s sale under a judgment upon a mortgage given by the owner in 1871, and the holder of a deed given by the owner in 1856, recorded in the same year in a certain deed book and entered in the index of that volume but not in the general index of deeds. The point decided was that the act of 1827 imposed no duty as to indexes, except to have one for each book. “But surely the one who has had his deed duly acknowledged or proved, recorded in the proper book, and certified under the hand and seal of office of the recorder in due form, has done all the law requires of him. On what principle of law or sound reason shall he be required to supervise the officer’s gratuitous indexing of deeds in an index not required by law? He is not to be presumed to be familiar, and as a fact, nine out of ten persons are not familiar with the system of the office. All the citizen can be bound to know, is the law, and he is warned by no law that there must be kept a general index. Whether his title can be taken from him, by the omission to enter his recorded and certified deed in the particular index, may admit of question, but we give no opinion on this point.”

Woods’s and Brown’s Appeal, 82 Pa. 116, decided in 1876, was an appeal from a decree distributing the proceeds of a sheriff’s sale of land of John S. Bare. The dispute was between a mortgagee and subsequent judgment creditors. The mortgage was left for record and entered on the entry book on July 15, 1872, but was not transcribed in the mortgage book until December 4, 1872, nor indexed until April 5, 1873. The judgment note of one of the appellants was given before the mortgage was transcribed, and the judgments in favor of both appellants were entered before it was indexed. The decree giving the mortgage precedence in the distribution was affirmed, upon the ground that no duty rests upon the mortgagee who has done what the law required of him “to supervise the actions of the recorder, and to see that he makes the record and indexes it immediately.” The case is of little value in the determination of the precise question before us; for it only goes to the extent of holding that the lien which a mortgage acquires by being left for record (prior to the act of 1875) was not lost by the delay of the recorder in transcribing and indexing it.

Following the chronological order of the cases we now come to Glading v. Frick, 88 Pa. 460, decided in 1879. The precise question was whether a building contract had been “duly recorded in the office for recording deeds within fifteen days after the execution thereof.” If it was, then under the act of April 3, 1872, the building and land were liable to the contractor alone for work done or materials furnished pursuant to the. contract, and the plaintiff (not being the contractor) in the scire facias upon the mechanic’s lien in question could not recover. It was shown'that the contract was recorded in the deed book, and it was argued upon the authority of Luch’s Appeal that this was not the proper book, and, therefore, the contract was not “duly recorded,” and the defendant could not claim the benefits of the act. Paxson, J., said: “The fact that it was recorded in a deed book did not prejudice the plaintiffs, they had made no search and were not misled.” But the decision was not put on that ground (if it were it would fit this case exactly) but upon the broad ground thus stated: “In contemplation of law a paper is recorded the moment it is lodged in the office and the fees paid. In point of fact it may not be, and in many instances is not actually entered in the books until months afterwards. Where a man has complied with the law by depositing his papers in the recorder’s office and paying the fees, it would be a hard rule that would deprive him of his lien or his estate because of an error of the recorder in recording the instrument in the wrong book. It would be different were there an act of assembly directing in what book the particular paper should be recorded. In such case the recorder might be liable upon his official bond for a failure to record as required by law. In the absence of any such act we are unable to see how we can declare that a paper is not recorded when the holder has done all that the act of assembly requires in placing it on record. To do so would seem very much like legislation.” This case is of particular importance in the decision of .our case, not so much because the facts are similar, for they are not, but because in overruling Luch’s Appeal, the court was called upon to declare the general principle controlling the same question we have before us, namely, what must the holder of a recordable instrument do in order to obtain the protection of the recording acts? Therefore, the foregoing utterances of the court upon that question cannot be regarded as mere obiter dicta, or as applicable only to building contracts. Besides that, the case has been uniformly followed and repeatedly cited in later decisions.

Wyoming National Bank’s Appeal, 11 W. N. C. 567, decided in 1882, involved a controversy between a mortgagee and a judgment creditor of the mortgagor, whose judgment was for an indebtedness incurred prior to the execution of the mortgage. The mortgage was left for record May 2, 1873, which it will be noticed was prior to the act of 1875, but was not actually transcribed until six weeks after; nor was there in the meantime any entry made in the entry book or any other book; nor was it indexed until 1879. It was held on distribution of the fund realized from an orphans’ court sale that the mortgage was entitled to precedence over a judgment entered in 1878. As to what the effect of the failure to entei the mortgage in the entry book would have been in the case of a lien intervening between that time and the recording of the mortgage, the court declined to express an opinion; but it is very evident from the opinion that the omission to enter the deed or mortgage in the entry book is not under all circumstances fatal to the recording of the instrument.

In Clader v. Thomas, 89 Pa. 343, decided in 1879, the defendant in the action of ejectment claimed under a deed for the iron ore in the premises, dated in 1862, recorded in the miscellaneous book, but not recorded or indexed in any deed or mortgage book. The plaintiff claimed under an orphans’ court sale of the entire premises made in 1868. The court referring to Luch’s Appeal said: “that case, however, has been since overruled, and it is now settled that a deed is in contemplation of law recorded when it is left for record in the recorder’s office, and the record cannot be lost by being transcribed by the recorder or his clerk in the wrong book. . . . There was sufficient to affect the purchaser (at the orphans’ court sale) with notice of Thomas’s title by the record, without having recourse to notice at the sale.”

Paige v. Wheeler, 92 Pa. 282, decided in 1880, arose out of the recording of a defeasance in the agreement book instead of the mortgage book. The point decided and the facts out of which the controversy arose are concisely stated in the following excerpt from the opinion of Justice Mercur: “Cooper, one of the plaintiffs .in error, claims title by virtue of his purchase at sheriff’s sale as the property of his co-plaintiff, Paige. The judgment on which it was sold was entered after the deed from Paige to the defendant in error and after the contract of defeasance were recorded. Inasmuch, however, as the defeasance was not recorded in the mortgage book, but in the agreement book, it is claimed that it was improperly recorded, and, therefore, if in fact a mortgage, the sheriff’s sale passed a title discharged therefrom. It may be conceded that this was the correct view under the authority of Luch’s Appeal, 44 Pa. 519. That case, however, has been expressly overruled by Glading v. Frick, 88 Pa. 460. It is there held that such an instrument of writing is properly recorded in any book kept by the recorder of deeds. Cooper then bought subject to the claim of the defendant in error, conceding the conveyance to have been a mortgage. If a mortgage, the latter can recover no more than the sum loaned, which it was given to secure, with legal interest thereon.”

Shebel v. Bryden, 114 Pa. 147, decided in 1886, recognized, although it did not turn exclusively upon, the legal proposition that if an assignment for benefit of creditors is “left to be recorded” within thirty days from its execution, it is sufficient, even though it was only transcribed and indexed in the limited partnership book, and was not indexed in the deed book index until several months after. “This,” said Justice Sterrett, “did not invalidate the recording of the instrument. In contemplation of law it was recorded and took effect from the time it was left with the recorder for the purpose of being recorded.”

Stockwell v. McHenry, 107 Pa. 237, which, though decided by the Supreme Court in 1884, related to an instrument recorded in 1865, and therefore the indexing act of 1875 did not apply. It was held: first, that the legal effect of the incorporation of a company under the act of 1854 was to vest in the corporation the title to all the lands in the certificate described without any further conveyance or assignment; secondly, that although the act provided that the certificate should be “recorded in the office for recording of deeds .... in a suitable book to be kept for that purpose,” it was not necessary that the names of the individual corporators named in the certificate be indexed in the recorder’s office in order to make the conveyance effective as against a mortgage subsequently given by two of the corporators upon their undivided interests. The opinion of Justice Clark so clearly states the duty, and its limits, of the grantee in a deed or mortgage in order to protect his title or his lien against subsequent purchasers and mortgagees that we quote from it at length. He says: “Assuming, therefore, that the certificate was in the nature of a conveyance, and that a proper indexing required that the names of the corporators contributing the land should be placed with the grantors, it does not follow that the failure of the recorder so to do invalidated the record. Prior to the act of March 18, 1875, at least, it was well settled, that a deed was in contemplation of law recorded when it was left in the recorder’s office and put upon the entry book for that purpose. ... No duty rested upon the Forest County Oil and Mining Company, to supervise the action of the recorder, to see that he made the record and indexed the conveyance: Brown’s & Wood’s Appeal, 3 W. N. C. 35; Wyoming Nat. Bank’s Appeal, 11 W. N. C. 567. Constructive notice of the conveyance must, therefore, be imputed to the holder of the Stockwell mortgage, as well as to those claiming under it; that notice being the implication which the law attaches to the registration of the certificate.”

There remains to be noticed one other case, Farabee v. McKerrihan, 172 Pa. 234. McKerrihan gave a mortgage to Farrabee, which was recorded in the deed book and indexed in the deed book index, instead of the mortgage book. It seems not to have been entered in the fair or entry book. On the distribution of the proceeds of sheriff’s sale of the land it was held that the mortgage was entitled to precedence over subsequent judgment liens. The case is valuable in the determination of the question before us, because Justice Green, speaking for the court, after an elaborate review of all the earlier cases, declared the law to be “that when the holder of an instrument to be recorded has left it with the recorder to be recorded, it is to be regarded as actually recorded, from that time, whether it was actually recorded at that time or not, or whether it was recorded in the wrong book.” The decision is particularly valuable also because it is the first case which discussed and determined the effect and applicability of the act of March 18, 1875. Justice Green says: “But it is urged that the Act of March 18, 1875, P. L. 32, in effect changes the law upon this subject as it was prior to its passage, and that under that act all mortgages must be recorded in mortgage books and indexed in mortgage indexes, in order to constitute notice to subsequent purchasers and incumbrancers.” Then after summarizing the provisions of the act he proceeds: “This act contains no repeal of any of the prior legislation of the state nor is it inconsistent with any part of it. It did not assume to create any new rule of constructive notice of recorded instruments. The Act of March 28,1820, 7 Sm. L. 303, provides that mortgages left for record shall be liens from the time they are recorded or left for record, and the contention of the appellants would practically destroy that part of this act which gives the same effect to being left for record as to being actually recorded.” Then after referring to Wyoming National Bank’s Appeal he said: “ It is no answer to this or any of the cases heretofore cited to say that they were decided either before the act of 1875 was passed, or upon facts arising prior to its passage, because that act is not in conflict with them.” What follows in the opinion does not impair .the controlling effect of these utterances as a construction of the act of 1875.

"Undoubtedly individual cases of hardship have arisen and will arise under the rule contended for by the appellee’s counsel. So there would under the rule contended for by the appellant’s counsel. But, in view of the foregoing decisions, it is impossible to see how a grantee in a deed or in a mortgage can be expected to do more to protect his title or his lien against subsequent purchasers and mortgagees than the appellee did in the present case. If it be said that before removing her mortgage from the recorder’s office she ought to have taken pains to see that it was duly recorded, the answer is, and under the Pennsylvania decisions it seems to be a conclusive answer, that she did not remove her mortgage until there was indorsed upon it the certificate, in the form prescribed by the statute, of the keeper of the record, who was authorized to make it, that the mortgage was duly recorded. As a result of a thorough examination of the decisions we conclude that if a mortgage, entitled to be recorded, is left with the proper officer for that purpose, and the fees are paid, and is not withdrawn until there is indorsed thereon the recorder’s certificate as above stated, and there is nothing to show why he should not rely upon that certificate, his lien will be protected against a subsequent purchaser without actual knowledge of its existence, although by a mistake of the recorder or his clerk, the name of the mortgagor is not correctly transcribed in the mortgage book or in the mortgage book index.

In the opinion of the learned judge below, there appears this sentence: “The writing of the scrivener of this mortgage undoubtedly misled the recorder.” The learned counsel for the appellant makes the point that if that be the fact the loss ought to fall upon .the mortgagee instead of upon the subsequent purchaser. This may be true, but the quoted remark does not contain a full statement of what the learned judge thought the mortgages showed, because he goes on to say “but the signature of L. J. Marshall as also the acknowledgment in the handwriting of the notary public is just as unquestionably an L and should have put the recorder on inquiry as to whether he was properly recording it.” This puts quite a different aspect upon the matter and in that aspect the recorder ought not to have been misled. If he had recorded and indexed the instrument precisely as, perhaps, he was justified in thinking it read and was executed and acknowledged, his record and .index would have shown beyond all question that it was the mortgage of L. J. Marshall. We are of opinion that there was no question of negligence on the part of the mortgagee to be submitted to the jury; and even if there were, it is difficult to see how the appellant could sustain his single assignment of error, namely, that the court erred in not entering judgment in his favor.

The judgment is affirmed.


author: Head, J.,

text:
    Commonwealth v. Bessemer & Lake Erie Railroad Company, Appellant.

      Railroads — Changing site of highway — Reconstruction of road — Indictment — Act of February 19, 1849; P. L. 79.
    A railroad company may be indicted under sec. 13 of the act of February 19, 1849, for failure to relocate and reconstruct a portion of a public road which it had appropriated, and the same is true of a railroad company which has by lease or purchase, taken over the rights and franchises of a former company, upon which was resting the obligation of the statute.
    An indictment in such a case is not bad for duplicity as joining the .common-law offense of obstructing a road with the statutory offense under the act, where it appears that the facts set forth showing an obstruction were merely introductory to the averment of the statutory offense.
    A count in such an indictment is not bad because the pleader inadvertently referred to the act alleged to have been violated as the act of April 19, 1849, instead of February 19, 1849. It was not necessary to insert the date of the approval of the act, and such a plain mistake could in no way mislead the defendant.
    The act of February 19, 1849, requires a railroad company which has changed the site of a portion of a public road, to reconstruct the same upon the most favorable location, and in as perfect a manner as the original road, and by necessary implication of the same other qualities, including width, actual and potential. The act does not require that the width and location shall be, in some way, by some action of the railroad company, duly designated and set over to the public as and for a public road. The statute contemplates no such action, and none is needful.
    A railroad company cannot be convicted of violating the act of February 19,1849, where the evidence shows that the company reconstructed a portion of a public road which it had taken, and that the new portion did not compare unfavorably with the old as to width, grade, surface, and general conditions for travel.
    Where a public road is crossed or intersected by a railroad at two points about 1,000 feet apart,-the company in reconstructing a portion of the road, “ on the most favorable location," is not required in such reconstruction to avoid the crossings.
    Argued Nov. 1, 1907.
    Appeal, No. 44, April T., 1908, by-defendant, from judgment of Q. S. Butler Co.,. June T., 1904, No. 12, on verdict of guilty in case of Commonwealth v. Bessemer & Lake Erie Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for violation of the act of February 19, 1849, relating to the reconstruction of a public road. Before Gal-breath, P. J.
    Defendant presented this point:
    11. The question in this case is not whether public crossings might have been avoided, but whether or not the Allegheny and Shenango Railroad Company, in constructing its railroad twenty-four years ago, partly upon a public road, supplied it with another in lieu of that portion taken, and it being undisputed that the public from that time up to the present has been traveling the same and that the public authorities worked upon and improved the supplied road, and on March 22, 1904, the supervisors, together with other citizens, presented a petition to vacate the public road set forth in the bill of indictment, and the court of quarter sessions having confirmed absolutely the report of viewers vacating the road now in question and supplying it with another, this prosecution under the indictment in this case cannot be maintained. Answer: Refused. [8]
    The court charged in part as. follows:
    [You may take into consideration whether or not the road that has been given is upon the most favorable location as a fact; whether it requires the public to cross at points not far separated from each other and that the Supreme Court has passed upon the question in case of Commonwealth v. Railroad Co., 215 Pa. 149.] [9]
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned amongst others was portion of charge, quoted above.

      Lev. McQuistion, with him C. L. McQuistion, for appellant. —
    When the company reconstructed the road over twenty-four years ago and the public took possession, using it until the present time, and the supervisors accepted it by working upon the same at divers times, all this has the legal effect of vacating so much of the old road thus supplied: Penna. R. R. Co.’s App., 128 Pa. 509.
    The court erred in refusing defendant’s motion to quash the first count in the indictment: Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Com. v. Miller, 2 Parsons, 480; Com. v. Railway Co., 127 Pa. 278.
    The commonwealth by its laches is estopped from maintaining this prosecution: Com. v. Turnpike Co., 153 Pa. 47; Com. v. Miltenberger, 7 Watts, 450; Pollard v. Shaaffer, 1 Dallas, 210; Church v. Ruland, 64 Pa. 432; Com. v. Railway Co., 14 Pa. Superior Ct. 336.
    Whether the railroad could have been constructed so as to avoid two grade crossings is a question not pertinent to the issue: Monongahela City v. Fischer, 111 Pa. 9.
    July 15, 1908:

      J. D. Marshall, with him Samuel Walker, district attorney, for appellee. —
    A railroad company is liable to indictment and conviction for neglecting to perform a statutory duty: Pittsburg, etc., Ry. Co. v. Com., 101 Pa. 192; Com. v. Penna. R. R. Co., 117 Pa. 637.
    Delay in proceedings or lapse of time will not release a railroad company from its duty to reconstruct a public road taken by it: Com. v. Railway Co., 14 Pa. Superior Ct. 336; Northern Central Ry. Co. v. Com., 90 Pa. 300.
    A railroad company must provide a roadway of the legal width, in this case thirty-three feet, and must locate it and mark it on the ground: Com. v. D., L. & W. R. R. Co., 215 Pa. 149.
    The first count was good: Com. v. Frey, 50 Pa. 245; Dawson v. People, 25 N. Y. 399; Com. v. Wood, 2 Pa. Superior Ct. 42; Com. v. Kay, 14 Pa. Superior Ct. 376; Com. v. Frey, 50 Pa. 245; People v. Lawrence, 137 N. Y. 517; 33 N. E. Repr. 547; Lohman v. People, 1 N. Y. 379.
   Opinion by

Head, J.,

The defendant railroad company was convicted on the first count of a bill of indictment charging it with a violation of the obligation imposed upon it by sec. 13 of the Act of February 1849, P. L. 79 which provides: “If any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the origL nalroad.” That an indictment will lie for such an alleged violation and that a railroad company which has, by lease or purchase, taken over the rights and franchises of a former company, upon which was resting the obligation of the statute-, takes the franchises cum onere and must discharge the obligation, are propositions that have been settled: Pittsburg, etc., Railway Co. v. Com., 101 Pa. 192; Com. v. Penna. R. R. Co., 117 Pa. 637; Com. v. Railway Co., 14 Pa. Superior Ct. 336; Com. v. Huntingdon & Broad Top Mountain R. R. & Coal Co., 35 Pa. Superior Ct. 416.

The appellant attacks the sufficiency in law of the count upon which the conviction rests, alleging it to be bad for duplicity in joining the common-law offense of unlawfully obstructing a public highway, with the statutory one of refusing to perform the duty imposed by the section of the act of 1849 already quoted. An examination of the bill will show, we think, no legal ground for quashing the first count. It alleges that defendant company, being a common carrier operating a railroad, entered on a portion of a public road described, erected an embankment, upon which it placed ballast, ties and rails, over which it operates its cars and locomotives. That for the purpose of constructing and operating its railroad, it took and continues to use a portion of said road, thus excluding the public from its former use. So far from alleging an unlawful obstruction we think the averments, above quoted in substance, negative that idea and are but introductory to the real charging averments that follow. These plainly show that the offense aimed at was the refusal of the company to reconstruct, as required by law, the road which had been thus lawfully taken by it. It is true the pleader inadvertently referred to the act alleged to have been violated as the act of April 19, 1849, instead of February 19, 1849. It was not necessary to insert the date of the approval of the act and such a plain mistake could in no way mislead the defendant. The learned court below was therefore right in refusing the motion to quash, and the first assignment is dismissed.

It is not disputed that, by due proceedings in the court of quarter sessions of Butler county, a public road, of the width of thirty-three feet, was regularly ordained for public use in Center township and that it was opened and became thereafter one of the ordinary highways of that township. Nor that in 1883 The Allegheny and Shenango Railroad Company, to whose rights the defendant has succeeded, in the" construction of its line, occupied a portion of said public road and thus incurred the statutory obligation to “cause the same to be reconstructed on the most favorable location and in as perfect a manner as the original road.”

The nature and extent of that obligation, the things needful to be done to satisfy the legislative demand, have'been, in part at least, defined by Chief Justice Mitchell in Com. v. D., L. & W. R. R. Co., 215 Pa. 149, as follows: “The original road of 1803 was laid out by formal proceedings in the quarter sessions, with a legal width of thirty-three and a half feet. It was actually opened presumably only to the ordinary width, but it retained its capacity to be opened to its full legal width at any time in the future when the public convenience should require it. This was its status, legal and actual, when the appellant took possession. . . . What the railroad company does under this authority (sec. 13, act 1849) is not to give the commonwealth a new road with a new title and new attributes, but the old road reconstructed. The site is necessarily changed, but in all other respects it is to be ‘the same,’ to wit: expressly upon the most favorable location and in as perfect a manner as the original road, and by necessary implication of the same other qualities including width, actual and potential.” There is no provision in the act by which the company can make a record of its work on the ground, or in the language of the learned trial court “duly designate” it. The act does not require that “its width and exact location should be, in some way, by some action of the railroad company duly designated and set over to the public as and for a public road.” The statute contemplates no such action and none is needful. Where a portion of a road has been taken and reconstructed under the act, the road never loses its entity. It remains, in legal contemplation, the same road. The company has nothing to do with fixing the width of the supplied portion. That width, “actual and potential” must be identical with the remainder of the road.

An examination of the language of the statute, read in the light of the authority quoted, leads us to the conclusion that, in the trial of an indictment like the one before us, several material questions — some simply questions of fact, others mixed questions of fact and law — may have to be considered and determined. Did the railroad company, in the construction ■of its roadbed, appropriate a portion -of an existing public highway? That it did so in this, case is not-disputed. The obligation to “reconstruct” therefore arose. Whether or not that obligation has been discharged is not always a simple question of fact to be disposed of on the bald affirmation or negation of witnesses. Of course, if the defendant company had taken a portion of the highway and provided no other -way of ■any kind to supply the part taken, so that the traveling public was left without anything to bridge the gap thus made, the mere ascertainment of that fact, would, unless the circumstances were most unusual and extraordinary, seem sufficient to warrant a conviction. But we have no such case here. The testimony is practically undisputed that the public had, at the time the bill was found and for many years before, a road of some kind. It-was located on ground owned in fee by the company, of sufficient extent to give to the supplied portion the full width, actual and potential, of the road as originally laid out. The company put it there, adjusted its crossings and built the approaches to them so as to make the way continuous and claims, by its testimony, to have done such uther work as was necessary to make this portion as good as the original road. It has certainly seen the public expend, during a period of many years, the money derived from taxation in maintaining and improving this road. It would not be contended, we think, in the face of the facts shown by this record, that the company could now in any way interfere with the public easement in that strip of ground. Must we not conclude, then, that the company has taken the first step necessary to a discharge of -its ■ statutory duty? But merely providing a strip .of ground of ■'the necessary width and locating a road thereon would not suffice to relieve the company. Did it open the portion supplied to the width and in “as perfect a manner as the original road”? As to these matters the testimony is exceedingly scant, but little attention seemingly having been given to them during the trial. Certainly it would be difficult for a jury, upon any evidence we can discover in the record, to find that the new portion compared unfavorably with the old as to width, grade, surface and general condition for traveling.

But was the portion of the road supplied “on the most favorable1 location”? If the obligation of the railroad company, in this respect, could be justly ascertained by a consideration merely of the expression quoted from sec. 13 of the act of 1849, the standard of duty would certainly be a high one. But reading the entire act, in the light of the interpretation given it by the court, reveals the legislative intent that when the contemplated reconstruction has been completed, the conditions .should be substantially the same that existed .just before the act of appropriation. “The site is necessarily changed,’’ says Chief Justice Mitchell, “but in all other respects it (the road) is to be 'the same.’ ” It appears from the evidence that in locating and building its railroad the defendant company found it necessary to cross or intersect the public road in question at two points about 1,000 feet apart. Both of these •crossings were at grade. In thus crossing the highway the company availed itself of the right expressly conferred by sec. 12 of the act of 1849. That section not only confers the right but plainly declares the conditions upon which it may be lawfully exercised. These performed none other can be imposed save by another legislative act. Nor does the statute contemplate that a railroad company, which has availed itself of the right conferred by sec. 12 and performed the conditions therein prescribed, should thereby create for itself additional and burdensome conditions when it undertook to exercise another right conferred by another section of the act. It may be true that travel along the highway has been made more dangerous by reason of these crossings. But this danger arises from and exists because of the lawful exercise by the company of the right expressly granted by sec. 12 of the act.

This situation was in no way affected, this danger was in no degree increased, by the determination of the company to change the site of a portion of the road between the two crossings. It is unfortunate they are so close together, but the legal principle involved is precisely the same as though they were a mile apart. We think, therefore, the learned trial court fell into error in permitting the jury to consider as a material factor in determining the guilt or innocence of the defendant, the fact that the public road, as it was originally and as it is now, is crossed or intersected by the railroad at- two points within a distance of 1,000 feet,

Where a statute imposes on a citizen the obligation of performing certain conditions as a consideration or compensation for the privilege of exercising a right or franchise, there ought to be lodged somewhere the power to determine that the conditions have been performed and the obligation discharged. Under our system of road laws the township supervisors have power to open a road after it has been lawfully laid out. If this involved the building of bridges or other work done by a citizen under the obligation of a contract, it can hardly be doubted that the supervisors, acting in good faith, could determine that the work had been -properly done and the obligation had been discharged.- So if the jury should find from the evidence in this case — and there is evidence in the record to warrant such finding — that the defendant company had, in good faith, undertaken to perform its statutory duty and that the portion of the road supplied was honestly accepted by the then township authorities as performance, we can see- no reason why that should not furnish a complete defense against the present indictment. The case must therefore go back to be tried again so that the material questions herein adverted to may be determined according to the principles declared in this opinion. We have not thought it necessary or helpful to consider the many assignments of error separately. It is sufficient to say that in none of them, save as herein indicated, do we find any reversible error.

Judgment reversed and a venire facias de novo awarded.


text:
    Moose Brewing Company, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Grade crossings.

    Where a collision takes place at a railroad crossing at the moment when a person enters upon the tracks, such person cannot recover for injuries sustained, no matter what his testimony may be as to stopping, looking and listening, because the fact of an immediate collision conclusively proves that he did not exercise his senses as to the approaching train. There is no difference in the application of this doctrine as to foot passengers and carriage passengers.
    A driver on approaching a grade crossing, stopped his team which was drawing a heavily loaded wagon, about thirty feet distant from the crossing, and at the foot of an incline about six feet lower than the track. He had an unobstructed view of about 300 feet in the direction from which a train came. After having looked and listened, and not seeing or hearing a train, he started up the grade on a slow pull, and continued until the horses entered upon the track. One of the horses was immediately struck by a train. During the whole distance from the point of- stoppage to the tracks there was nothing to distract the driver’s attention, nor to obstruct his view. Held, that there could be no recovery against the railroad company.
    Argued April 16, 1908.
    Appeal, No. 159, -April T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 166, on verdict for defendant non obstante veredicto in case of Moose Brewing Company v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Trespass ^to recover damages for personal injuries. Before Shaeer, J.
    The opinion of the Superior Court states the facts.

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

      E. W. Arthur, with him W. S. Thomas, for appellant.

      James B. Miller, with him Patterson, Sterrett & Acheson, for appellee.

      July 19, 1908:
   Opinion by

Orlady, J.,

The plaintiff’s driver, on approaching a grade crossing, stopped his team, which was drawing a heavily loaded wagon, about thirty feet distant from the crossing and at the foot of an incline, about six feet lower than the tracks. His reason for so doing was said to be that that was the usual and ordinary place for travelers to stop so as to look and listen for an approaching train, and, second, that it was easier for him- to stop there than on any part of the incline with his heavy load, and then start again. After having looked and listened, and not seeing or hearing a train, he started up the grade on a slow pull and continued until the horses entered upon the tracks, “That is, they were just about ready to go on the track when I looked down the track and saw the train. It just hit one horse and dragged him in between those posts. The horse was just stepping on the track, was just a little over the rail, I suppose.” ■

The driver had an unobstructed view, on a clear day, for-about 300 feet in the direction from which the train came, and with nothing to distract his attention, and without making any second stop before entering upon the track, and the accident was clearly the result of his not continuing to look until the time his horses stepped on the track. In Holden v. Pennsylvania Railroad Co., 169 Pa. 1, the Supreme Court held that where the collision takes place at the moment when the party enters upon the tracks, he cannot recover, no matter what his testimony may-be as to stopping, looking and listening, because the fact of an immediate collision conclusively proves that he did not exercise his senses as to the approaching- train.

In this case, as in Carroll v. Railroad Co., 12 W. N. C. 348; Penna. Railroad Co. v. Bell, 122 Pa. 58, and Marland v. Pitts. & Lake Erie R. R. Co., 123 Pa. 487, it is necessarily true that if he made use of his eyesight, he must have seen the approaching train. He could not possibly have looked along the track in the direction of the approaching train, and have failed to see it, since his presence on the track and the collision were simultaneous. In the-application of this rule, the decisions-are now clear that there is no difference in the application of the doctrine as between foot passengers and carriage passengers: Holden v. Pennsylvania R. R. Co., 169 Pa. 1.

Doubtless it was easier for Ms team, and more convenient for the driver to make a continuous haul up the slope of the crossing, rather than to stop oh tMs grade, but this convenience must yield to the imperative duty imposed on him by the law, not only to keep a vigilant and continuous outlook, but to stop if a second place affords any increased facility to discover impending danger: Cookson v. Pitts. & Western Ry. Co., 179 Pa. 184.

While his first stop for observation was at the place recognized by travelers on that road, as the proper one, yet under his own testimony he had a perfectly safe place to stop, inconvenient though it may have been for him, before he entered upon the track, and in this particular he makes the accident the result of his own contributory negligence. He does not pretend to say that the foot of the grade was the best place to stop before entering upon the track, and if he had even looked and listened, without - stopping, immediately before going upon the track, it is manifest that the accident would not have occurred.

• The judgment for the defendant non obstante veredicto is affirmed.