text:
    Baer v. Wilmoth, Appellant.

      Equity — Equity jurisdiction — Nuisance—Remedy at law — Boundary line.

    In a suit in equity to settle a disputed boundary line and to abate a nuisance in the nature of a water way where it appears from the pleadings and proofs that the real dispute was the location of the boundary line between plaintiff’s and defendants’ lots, and that the parties had actual possession of their respective lots to the true line thereof, wherever that might be, the bill will be dismissed on the ground that plaintiff’s remedy is an action at law to determine the location of the boundary line.
    Argued May 5, 1908.
    Appeal, No. 14, April T., 1908, by defendants, from decree of C. P. Somerset Co., Equity Docket 1905, No. 6, on bill in equity in case of Maggie May Baer v. Wilmoth & Leith.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court in favor of the plaintiff.

      April 12,1909:

      W. II. Ruppel, for appellants. —
    The court erred in refusing to dismiss the bill because the remedy, if any, was by ejectment at common law: Washburn’s App., 105 Pa. 480; Coward v. Llewellyn, 209 Pa. 582; Godino v. Kane, 26 Pa. Superior Ct. 596; Thomas v. Clarke, 32 Pa. C. C. Rep. 548; Orne v. Fridenberg, 143 Pa. 487.

      J. A. Berkey, with him G. K. Warn, for appellee.
    The court had jurisdiction: Masson’s App., 70 Pa. 26; Allison’s App., 77 Pa. 221; Bitting’s App., 105 Pa. 517; Walters v. McElroy, 151 Pa. 549; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649; Sullivan v. Steel Co., 208 Pa. 540.
   Opinion by

Morrison, J.,

In the present case we have an appeal by the defendants from a final decree in equity attempting to settle (a), a disputed boundary line between the plaintiff and the defendants who claim to own adjoining lots of land in Myersdale, Somerset county. The parties have titles from a common source and no question is raised as to the validity of either title; (b) that the laying of tile in a water way on or near the line between the parties’ lots and filling up said water way over the tile created a nuisance and damaged the plaintiff’s cellar, (c) Incidentally certain acts of trespass and continuing trespass are charged against the defendants, in the bill, but whether or not the defendants trespassed upon the land of the plaintiff depends upon the true location of the line between the two lots. The plaintiff contends that the north line of her lot is along the center of the water way above mentioned. But the defendants contend with equal vigor that their lot includes the whole of said water way from the street on which both lots front, east as far as the plaintiff’s lot extends. Defendants further contend that their south line is the plaintiff’s north line and that it is several feet south of the south bank of said water way. Therefore, we have a plain case of a court of equity attempting, against the protests of the defendants, to try and determine questions which ought to be tried on the law side of the court before a court and a jury. We find in the record a large number of exceptions and sixteen assignments of error, but it will not be necessary to discuss them separately. The answer of defendants, the exceptions and assignments of error squarely raise the above controlling questions, and we think the well-settled cases will dispose of this decree by establishing that it is erroneous. We cannot discover in the record any controlling question giving a court of equity jurisdiction, and, therefore, the learned court was in error especially as raised in the eleventh,twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments of error, in assuming that all matters of dispute between the parties in regard to their lots could be disposed of in equity. Where a court of equity has jurisdiction it will dispose of every incidental question necessarily involved: Wilhelm’s Appeal, 79 Pa. 120.

The assignments of error above referred to are all aimed at and raise the question of the power of a court of equity to make the decree in this case. We would here remark that fhe evidence seems to make it clear that both plaintiff and defendants had actual possession of their respective lots to the true line thereof, wherever that may be. Therefore, the whole controversy hinged (a) On the true location of that line; (b) was a nuisance maintained by defendants to the damage of plaintiff? (c) Did defendants trespass on plaintiff’s lot? These are pure questions of law and fact for a court and jury.

In Barclay’s Appeal, 93 Pa. 50, it is stated in the syllabus: “It is well settled in the equity practice of Pennsylvania that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree.” See Mary Ann Long’s Appeal, 92 Pa. 171.

In Scanlin, Appellant, v. Conshohocken Borough, 209 Pa. 48, it was said by the Supreme Court: “This is the exact question held in O’Neil v. McKeesport, 201 Pa. 386, to be a question at law, and not cognizable in the first instance, in a court of equity. We do not pass, therefore, on the merits of the case, but affirm the decree dismissing the bill for want of jurisdiction in equity without prejudice to the rights of the parties at law.” In O’Neil v. McKeesport, 201 Pa. 386, the Supreme Court said: “This is the substance of the whole controversy and it is without any element of equitable jurisdiction: Washburn’s Appeal, 105 Pa. 480. An action of ejectment would settle the question, or if plaintiffs are unwilling to admit themselves out of possession, then an action of trespass for tearing down the fence would be equally effective, or an action of assumpsit for the balance of the purchase money retained by the school district. Decree reversed and bill directed to be dismissed with costs, but without prejudice to the rights of the parties at law.”

In Coward v. Llewellyn, Appellant, 209 Pa. 582, it was said by the Supreme Court: “Defendants claim title to and are in possession of ten feet of that alley; that they have such title and possession plaintiffs deny and on this fact depends the jurisdiction of the court to eject them, not in equity but at law. And plaintiffs have more than one legal remedy. But as was said by Paxson, J., in City of New Castle v. Raney, 130 Pa. 546: 'The authorities uniformly limit the jurisdiction to the cases where the right has first been established at law or is conceded. It was never intended and I do not know of a case in the books, where a chancellor has usurped the functions of a jury and attempted to decide disputed questions of fact.’

“There is much that is interesting in the case and the learned judge of the court below gave it most careful attention, but it would be unjust to both parties if we were to review his findings of fact and conclusions of law when we have no more jurisdiction to do either, than he had in the first hearing. The decree is reversed and the bill dismissed at costs of appellees without prejudice to them to institute such suit or suits at law to determine their rights as to them may seem proper.” In City of New Castle v. Raney et al., 130 Pa. 546, it was held as stated in the syllabus, “Upon a bill in equity to restrain or abate a public nuisance, if the matter complained of be not a nuisance per se, and if the testimony be conflicting whether it is a public nuisance at all or not, an injunction will not be granted -until after the fact shall have been determined by a trial at law.

“Where the testimony as to whether a mill-dam, maintained for its water-power for over half a century and about which a city has grown up, has become a public nuisance or not, is conflicting, a bill to abate it will be dismissed, without prejudice to the right of complainants to proceed by indictment or action at law.”

If the defendants’ treatment of the water course is a private nuisance, which is disputed, the plaintiff has a clear right to an action at law to recover damages, and such action will determine whether or not the acts of defendants amount to a nuisance. They do not create a nuisance per se: Gavigan v. Refining Co., 186 Pa. 604.

We might multiply authorities ad libitum, but it is unnecessary. The learned court was also in error in assessing the damages in equity for the trespass or trespasses alleged by plaintiff. This plaintiff should first establish her rights in an action at law.

We sustain the eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments of error and reverse the decree and dismiss the bill at plaintiff’s costs, but without prejudice to her right to proceed at law.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Garrett, Appellant, v. Philadelphia Lawn Mower Company.

      Corporations — By-laws—Agreement among subscribers to stock.

    1. Where five persons meet for the purpose of organizing a corporation, and at the meeting they subscribe for the respective shares of their stock, and agree that one of the by-laws of the proposed company shall provide that the subscriber shall not sell or assign his stock until he shall have offered it to the other subscribing stockholders, and thereafter the company is organized and the by-laws adopted, such a by-law constitutes an agreement among the subscribing stockholders, and is enforceable against each of them, or if dead, against their personal representatives.
    2. A subscription by a number of persons to the stock of á corporation to be thereafter formed by them constitutes: First, a contract between the subscribers themselves to become stockholders when the corporation is formed upon the conditions expressed in the agreement, and as such it is binding and irrevocable from the date of the subscription; second, it is in the nature of a continuing offer to the proposed corporation which, upon acceptance by it, becomes as to each subscriber a contract between him and the corporation.
    April 12, 1909:
    Fitzsimmons v. Lindsay, 205 Pa. 79, and Lindsay's Estate, 210 Pa. 224, followed.
    Argued Oct. 13, 1908.
    Appeal, No. 231, Oct. T., 1907, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 5,155, dismissing bill in equity in case of J. Lentz Garrett v. The Philadelphia Lawn Mower Company, John W. Graham and Alexander B. Geary, Executor of the last Will and Testament of William G. Vernon, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      Frank B. Shattuck, with him O. B. Dickinson, for appellant.—
    The by-laws of a corporation cannot legally prohibit or limit the right of a stockholder to sell his stock; Bloede Co. v. Bloede, 84 Md. 129 (34 Atl. Repr. 1127); McNulta v. Corn Belt Bank, 164 Ill. 427 (45 N. E. Repr. 954); Ireland v. Milling Co., 21 R. I. 9 (41 Atl. Repr. 258); Moore v. Bank of Commerce, 52 Mo. 377; In Re Klaus, 67 Wis. 401 (29 N. W. Repr. 582); Brinkerhoff-Farris Trust, etc., Co. v. Lumber Co., 118 Mo. 447 (24 S. W. Repr. 129); Feckheimer v. Nat. Exchange Bank, 79 Va. 90.

      Hampton L. Carson, for appellee. —
    The by-law is valid and reasonable: Fitzsimmons v. Lindsay, 205 Pa. 79; Lindsay’s Est., 210 Pa. 244; Boswell v. Buhl, 213 Pa. 450; Barrett v. King, 181 Mass. 476 (63 N. E. Repr. 934); Dupee v. Boston Water Power Co., 114 Mass. 37; Scruggs v. Cotterill, 67 App. Div. 583.
   Opinion by

Head, J.,

The material facts in this case, all of which appear in the bill and answer or have been agreed upon by the parties and stated by the court below, are briefly these. On November 7, 1893, five gentlemen met in the city of Philadelphia to take the preliminary steps towards organizing a private corporation to take over the business and assets of a partnership doing business under the firm name of Graham, Emlen & Passmore. Among these gentlemen was Wm. G. Vernon. These five were to be all of the incorporators of the proposed company and at that meeting subscriptions to the stock were made by each of them. At the same meeting the chair was authorized to appoint a committee of two to prepare proposed by-laws for their future conduct and submit them at a subsequent meeting. ■ The chair appointed the said Wm. G. Vernon and John W. Graham, one of the defendants. A second meeting was held on the twenty-first of the same month, at which all of the same gentlemen, the incorporators, were present. The committee appointed to prepare a set of by-laws submitted its work, and it was moved and unanimously carried “that the above by-laws be adopted as the laws of the association.” At the same meeting the application for a charter, which had been prepared by counsel, was submitted and was thereupon executed. Among the regulations thus submitted and adopted at the meeting of these individuals, prior even to the execution of the application for a charter, was the following: “Shares of capital stock may be transferred by indorsement on the certificate and its surrender to the secretary for cancellation, whereupon a new certificate shall be issued to the transferree. Provided, however, that before any one holding stock of this corporation at the time of the adoption of these by-laws shall sell or assign such stock so held by him, he shall offer the same to the then stockholders who shall have the option of buying the same at par, and only upon the declination of the stockholders to buy said stock shall he have the right to sell to outside parties.” Subsequently, on December 19, 1893, letters patent were regularly issued and the said corporation was duly created under the laws of the state of Pennsylvania.

The record does not disclose any' change of ownership in the stock or any controversy of any kind among the stockholders, as to the management or control of the corporation, down until the death of Wm. G. Vernon in 1904. At the time of his death he was the owner of 187 shares of the capital stock of the corporation. Letters testamentary were issued to Alexander B. Geary, one of the defendants, who qualified as executor and undertook the duties of his trust. Some time after the decease of said Vernon, his executor offered at public sale the aforesaid shares of stock, with the privilege to the purchaser to buy one share or as many of the 187 as he might desire, for the price at which the stock would be knocked down. The plaintiff, Garrett, purchased one share of stock at said sale for $138, and sought to have a new certificate issued to him as the transferree of Wm. G. Vernon, deceased. The officers of the corporation declined to make the transfer because of the failure of the executor to first offer the shares of his testator to the remaining stockholders, in accordance with the terms of the stipulation which had been entered into by the incorporators previous to the organization of the corporation and which after-wards became a by-law of the body corporate. Following such refusal this bill was filed praying for a decree directing such transfer to be made and for an injunction to prevent and restrain the transfer of such share to any other person than the plaintiff. The learned court below in a careful opinion filed, held that the plaintiff had shown no equity and entered a decree dismissing his bill. From that decree this appeal is taken.

We do not think the exact question before us is as broad as it is stated by the able counsel for the appellant. He deals with the question largely, if not exclusively, as if we had nothing before us in the nature of individual action, by persons owning property and regulating its future disposition, but rather as if we had simply a by-law of a corporation, adopted by a majority of its stockholders, which undertook to regulate, perhaps interfere with, the ordinary rights of property of the individual stockholders of such corporation. If we were dealing merely with an ordinary by-law, we would doubtless be obliged to hold that no such law could be effective if it were unreasonable, or if it were forbidden by sound public policy. Many cases in other jurisdictions have been cited which seem to hold that a by-law, the effect of which would be to even restrict the right of a stockholder to sell and transfer his stock, would be void. In some instances such cases stand on the statutory regulations of the states in which they were rendered, whilst in others they perhaps take the broader ground. But the decisions are not uniform even in the states outside of Pennsylvania, and certainly no case has been cited in Pennsylvania where even a bylaw, of the character of the one now before us, has been held to be unreasonable or in contravention of sound public policy. On the contrary, as we shall presently show, an agreement practically similar to the one now under consideration was held to be valid and binding upon those who entered into it.

But, in our view of the case, we have something more before us than merely a by-law, adopted in the usual form by the stockholders, or a majority of them, of the corporation. There was certainly no incapacity on the part of any one of the five gentlemen, who afterwards became the incorporators of the defendant company, to agree among themselves how the corporation should be organized, and how its stock should be held and transferred, to the end that they might reasonably be able to foresee where the control and management of the corporation would rest. As long as they violated no statutory law or rule of public policy, they had the right to agree to whatever they deemed most likely mutually to subserve their future interests. At the same meeting, and as part of the same act, they subscribed for the amount of stock which, it was mutually agreed, each should take, and fixed the conditions upon which that stock should thereafter be held. There can be but little doubt as to the nature of their act in subscribing for the stock. That they thereby assumed a contractual relation towards each other, as well as towards the corporation thereafter to be created, has been frequently stated. The effect of such an act is thus described in Minneapolis Threshing Machine Co. v. Davis, 3 L. R. A. (Old Series) 796: “A subscription by a number of persons to the stock of a corporation to be thereafter formed by them constitutes: First, a contract between the subscribers themselves to become stockholders when the corporation is formed upon the conditions expressed in the agreement, and as such it is binding and irrevocable from the date of the subscription; second, it is in the nature of a continuing offer to the proposed corporation which, upon acceptance by it, becomes as to each subscriber a contract between him and the corporation.” The same principle is more tersely stated by Woodward, J., in Graff v. Pittsburg, etc., R. R. Co., 31 Pa. 489, in the following language: “ A subscription to a joint stock is not only an undertaking to the company, but with all other subscribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third.” By their subscriptions to the stock of the proposed corporation, the five incorporators fixed the relation in which all agreed it was desirable each should respectively stand towards the corporation and towards each other. This relation was of the first importance to the future success of their enterprise and they had a right to consider it and to contract with each other concerning it. We do not apprehend it will be denied that in this respect the relation they created at that time was contractual in its nature. But if it was proper and reasonable for them to consider what proportions of the stock each of the individual incorporators should hold, how did it become unreasonable or unlawful for them to take the further step of so guarding such holdings, that the common object in view should not thereafter be disrupted when it became necessary or desirable that the stock of one incorporator should be sold? The regulation they adopted did not prohibit the alienation of his stock by any incorporator. On the contrary, it recognized and'anticipated that such sale might happen. It did not attempt to bind future holders of the stock who might never have assented to the stipulation and who might never become stockholders until after the object then in view had been accomplished. The stipulation simply undertook to bind those who were considered as stockholders at the time of its adoption, and each of those persons was present advocating and assenting to the adoption of such a regulation. Had such company been incorporated by a special act of the legislature prior to the adoption of the new constitution, and had such a provision been inserted in the charter act, no one will deny that it would have been effective to accomplish its purpose. Such provisions are frequently inserted in the charters of corporations. We cannot see why, as to the five incorporators, this agreement, by which each one bound himself to sell his stock only in the manner therein provided, was not just as effective as if it had been placed in the body of their charter, because it was one of the conditions agreed to in advance of the creation of the corporation, and its effect was to continue and endure after such creation. An antenuptial agreement is not entered into by a husband and wife, but by two individuals in contemplation of the early assumption of the marriage relation. But the agreement they then make may lawfully and properly bind them and control the disposition of their property after they assume the new relation, otherwise it could not effect the object for which it was made. So here, the conditions that were to control the future transfer of their joint property — in which all were interested — -were not created by stockholders, deriving their power to make by-laws because of their ownership, but by individuals, each acting for himself, and free to act as he chose for his own and the common good.

In New England Trust Co. v. Abbott, 162 Mass. 148, a leading case in that state, a question arose quite similar to the one now before us. That was a bill for the specific performance of a stipulation requiring that, in case of the death of a stockholder in a corporation, his stock should be appraised in the manner therein indicated and then first offered to the directors for the use of the corporation, etc. The by-laws of the corporation so provided, and these provisions were printed on the backs of the certificates which the stockholders agreed to receive and hold in accordance with these by-laws. In disposing of that case the court said: “The defendant contends that these by-laws are void. We have not found it necessary to consider that question and we express no opinion upon it. We think that the case may well stand on the ground that the defendant’s testator entered into an agreement with the plaintiff to do what the plaintiff now seeks to compel his executor to do. It is manifest that a stockholder may make a contract with a corporation to do or not to do certain things in regard to his stock, or to waive certain rights or to submit to certain restrictions respecting which the stockholders might have no power of compulsion over him. In Adley v. Whitstable Co., 17 Ves. Jr. 315, 322, Lord Eldon says: ‘It has been frequently determined that what may well be made the subject of a contract between the different interests of a partnership would not be good as a by-law.’ ”

In the present case the aid of a court of equity is invoked to compel an executor to violate an agreement entered into by his testator. But it may be said that the purchaser of the stock in the Massachusetts case found the by-laws printed on the back of his certificate and therefore had knowledge of them before he bought, and consequently was bound by them. So far as the purchaser in this case, the present plaintiff, is concerned, he too had express notice of the situation that was before him, and that the corporation would not transfer the stock to him in violation of the agreement that had been made by his predecessor in title.

But it seems to us that the question has been very largely settled adversely to the plaintiff by the Supreme Court of our own state. In Fitzsimmons v. Lindsay, 205 Pa. 79, it appeared, “That the James C. Lindsay Hardware Company has a capital stock of $150,000, and that on April 13,1895, James C. Lindsay et al. were the owners of all of its stock, and on that date these stockholders entered into an agreement for the evident purpose of continuing the concern as a close corporation, and provided therein that in the event of the death of any one or more of the parties the remaining stockholders should have the option to purchase and acquire the stock of the deceased party at its book value.” On the death of one of the stockholders a bill in equity was filed in the common pleas of Allegheny county to compel a disposition of his shares of stock in accordance with that agreement. There was a demurrer filed to the bill. In disposing of that case it was held that the jurisdiction was exclusively in the orphans’ court and that consequently the bill in the common pleas could not be sustained. But in considering the character of the agreement and the right of the other stockholders to have it enforced this language was used: “Neither is the objection that the agreement is in restraint of alienation sufficient. Such agreements are quite common among partners as to their shares in the firm assets and are enforced by courts without hesitation. No reason of overruling public policy is apparent why they should not also be sustained in relation to shares of stock in what is really only a private trading corporation.” In Lindsay's Estate, 210 Pa, 224, that agreement was finally enforced, and in speaking for the court Mr. Justice Brown said: “In Fitzsimmons v. Lindsay, 205 Pa. 79, we held that the agreement of the stockholders of the James C. Lindsay Hardware Company by which each subscribing stockholder acquired a preferred right by way of option to purchase the shares of any one who died or who might withdraw from the business was a binding contract supported by a mutual and sufficient consideration.”

Now if Wm. G. Vernon and his associates had entered into an agreement in form and executed it with their hands and seals, the case would be on all fours with that just cited. Certainly the nature of the agreement has not changed because of the form in which the parties chose to stipulate with each other. The intention to agree, of each to bind himself, is just as apparent as if it had been clothed in the most solemn and formal of instruments. If in essence and substance the object they had in view was neither unreasonable nor opposed to public policy, it can hardly be said to become so because it was after-wards adopted as a by-law, by the corporation not then in existence, but whose future welfare was then being provided for. The learned court below has carefully analyzed and compared many cases outside of the state and cited others from other states which we think support the conclusion he has reached. We are constrained to agree with him that the plaintiff has shown no such equity as should move the court to enter the decree prayed for, and therefore the bill was properly dismissed.

Decree affirmed.


author: Rice, P. J.,

text:
    Fay v. Lester Piano Company, Appellant.

      Contract — Building contract — Approval by architect — Fraud.
    In an action to recover a balance alleged to be due on a building contract which provided that the work should be done under the direction of the architect whose decision should be conclusive, a verdict for the plaintiff will be sustained where there is evidence from which a jury could find that the defendant refused to pay the plaintiff the amount that was due him, not because he had not fully performed his part of the contract, but because he would not do something he was not under obligation to do, and that the architect refused to give the certificate, not in the exercise of his independent judgment upon the facts, but because the plaintiff would not comply with the unwarranted demand of the defendant.
    Argued Oct. 13, 1908.
    Appeal, No. 55, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. C., Sept. T., 1903, No. 664, on verdict for plaintiff in case of Ella M. Fay v. The Lester Piano Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due on a building contract. Before Audenried, J.

    The facts are stated in the opinion of the Superior Court and in the report of the former appeal, 32 Pa. Superior Ct. 437.
    Verdict and judgment for plaintiff for 11,465. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Francis Chapman, with him S. Spencer Chapman, for appellant. —
    The duty of determining whether fraud has been practiced in a given case is primarily for the court, which should never allow a jury to find a verdict on mere suspicion or on evidence only sufficient for conjecture: Battles v. Laudenslager, 84 Pa. 446; Mead v. Conroe, 113 Pa. 220; Kaine v. Weigley, 22 Pa. 179; Allison v. Ward, 63 Mich. 128 (29 N. W. Repr. 528); Epps v. Dickerson, 35 Iowa, 301.
    April 12, 1909:

      Edmund Randall, with him James A. Flaherty, for appellee,
    cited: Pittsburg Terra Cotta Lumber Co. v. Sharp, 190 Pa. 256.
   Opinion by

Rice, P. J.,

The controlling question presented for our consideration in this appeal is whether the facts which the jury could find from the evidence were sufficient to warrant them in inferring therefrom that the architects, acting in collusion with the defendant, wrongfully withheld their certificate. These facts are: first, that the contractor, of whose estate the plaintiff is administratrix, fully performed his contract in accordance with the plans and specifications as modified by the defendant and the architects; second, that this complete performance was known, or at least should have been known by the defendant and the architects; third, that when the contractor demanded from the defendant payment of the balance due, payment was refused unless he would cover the inclines with steel plates, which he refused to do, and was not obliged to do, either by the original or the modified plans and specifications; fourth, that when the contractor applied to the architects for their certificate, the latter replied that -they could not give it; fifth, that the reason, and the only reason, assigned by them for withholding it was because the owners were not satisfied with the wooden inclines and would not accept the building until steel plates were placed on them. We do not say that the fact that the architects assigned no other reason would, of itself, compel the jury to find that they had no other reason, or that in refusing this certificate they did not act on their own independent judgment; but it is nevertheless a significant fact to be considered by the jury in determining the main question.

In the foregoing statement of facts we are not to be understood as giving our own judgment on the evidence, but merely as stating the facts, which the jury, in the exercise of their prerogative to decide as to the credibility of the witnesses, and as to the preponderance of testimony, could find from the direct evidence in the case. There is no direct evidence that the architects and the defendant met and expressly agreed to this course of conduct on their part, but it is to be borne in mind that the architects were the employees of the defendant; that they assigned a reason for their refusal to give a certificate, which tended to show that they were acting rather as the defendant’s employees than as impartial arbitrators; that this was the only reason assigned by them, and was not a valid reason; and that the effect of their action would be, if he could not resort to an action at law, to compel the plaintiff to forfeit the money due him unless he would add something to the defendant’s building which he was under no obligation to do. Of course, the jury could not peer into the minds of the architects and ascertain with absolute certainty what influenced them to do that which tended to assist their principal in enforcing its demand, but, assuming the facts to be as above stated, the jury could reasonably infer that the architects knew of the unwarranted demand of the defendant, and intended the very result which the defendant was seeking to accomplish, and because the defendant sought it. The jury were not bound to accept the testimony of one of the architects that they acted on their own independent judgment, and reject the inferences to which the proved facts irresistibly led them. When this case was here before, 32 Pa. Superior Ct. 437, we said: “A mere mistake in judgment on the part of the architect is not ground for judicial interference with his decision where it is stipulated in the contract that it shall be conclusive, unless it be so gross as necessarily to imply bad faith or a failure to exercise an honest judgment. And, without deciding the point, it may be conceded for present purposes that, although the architect is the employee of the owner, proof of even such gross dereliction on his part, standing alone, would not dispense with the production of the certificate of approval which the contract calls for, and enable the contractor to maintain a suit upon the contract. But a demand of the owner after full performance by the contractor, which the architect attempts to assist the owner in enforcing by refusing his certificate unless it is complied with, may be so unconscionable, or so utterly unreasonable and unwarranted on its face, that the mind is irresistibly led to the conclusion that they are acting in collusion within the meaning of the decisions. Collusion is defined to be a secret agreement for a wrongful purpose; fraudulent cooperation; a secret arrangement between persons to defraud another or to obtain an unlawful object, through legal proceedings. From the very nature of the act it would be impossible in very many if not in most cases to establish the existence of such secret agreement by direct and positive testimony. Reliance must often be placed, and may very safely be placed, upon circumstances which lead to the conclusion that apparently isolated acts are truly parts of a common whole; that they have sprung from a common object, and have in view a common end.’ This case may present a very different aspect when the facts are fully developed, but assuming the facts to be as stated in the plaintiff’s offer, a jury could find that the defendant refused to pay the plaintiff the amount that was due him, not because he had not fully performed his part of the contract, but because he would not do something he was not under obligation to do, and that the architect refused to give the certificate not in the exercise of his independent judgment upon the facts, but because the plaintiff would not comply with this unwarranted demand of the defendant.’’ Upon careful reconsideration of the legal propositions involved in the foregoing, and full consideration of the evidence given on the succeeding trial and of the earnest and able argument of appellant’s counsel as to its insufficiency, we are unable to conclude that the former were erroneous or that, applying them to the evidence, the case ought to have been withdrawn from the jury. The learned trial judge submitted it to the jury in a clear, adequate and impartial charge, which carefully guarded the defendant’s rights, and in accordance with the views expressed by us when the case was here before. No complaint is made or could be made of the manner in which it was submitted, if it was to be submitted at all, which, as we have indicated, the court was bound to do.

The judgment is affirmed.


text:
    Stetler’s Estate.
    April 12, 1909:

      Orphans’ court practice — Bill of review — Laches.
    A petition for a bill of review filed more than a year after the confirmation of an executor’s account, will be dismissed where the answer filed to the bill denies the allegations therein, and where it appears from the proofs that the petitioner signed a certificate as to the correctness of the account, and his denial of his signature is met with overwhelming proof of its validity, and there is nothing in the evidence to sustain the allegations of fraud set forth in the petition.
    Argued Oct. 14, 1908.
    Appeal, No. 72, Oct. T., 1908, by-Louis H. Stetler, from decree of O. C. Phila. Co., Jan. T., 1906, No. 177, dismissing petition for bill of review in Estate of Harry R. Stetler, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for bill of review.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree dismissing the petition.

      O. Von Phul Jones, for appellant.

      Frederick A. Sobernheimer, for appellees.
   Opinion by

Head, J.,

Harry R. Stetler died January 2,1905, testate, leaving to survive him five sons, four of whom, including the appellant, were then of full age. For some years prior to his death, he, with his two sons, Harry and William, was engaged in mercantile business in the city of Philadelphia. It appears their partnership business began perhaps as early as 1902, and that in October of 1904, formal articles of association in writing were drawn up and executed. It is provided in this agreement: “The said Harry R. Stetler shall attend solely to the purchase of goods for the business and to the finances of said business, and to the drawing and signing of all checks, etc.”

After his death his interest in the firm’s business was appraised and taken over at the appraised value by the surviving partners, who were also the executors of his will. About one year after the death of their testator, his executors settled their account which was duly advertised, was called for adjudication in the orphans’ court on February 5, 1906, and the decree of adjudication filed on the thirteenth of the same month. Not only were there no exceptions filed, either to the account as stated or to the decree of adjudication, but all of the children of the said testator, including the present petitioner, joined in a written certificate attached to the account declaring that they had examined it, understood it, and desired its confirmation. The appellant at that time lived with his brothers, and the relations between them were amicable and pleasant. Matters thus remained until more than a year later, when the appellant filed his petition in the orphans’ court for a bill of review. In his petition the appellant makes no mention of the fact that he had joined with his brothers in'certifying to the court that the account of the executors was correct and ought to be adjudicated, and makes no explanation of his act. He avers that the valuation of the interest of his father in the business referred to was much below its actual worth, and that at the time of his father’s death the latter was not indebted to the firm in the sum of $1,098.82, with which sum the estate had been charged by the surviving partners in taking over the interest of the deceased partner. An answer was filed which distinctly denies both of these allegations of fact, and the burden of proof was therefore strongly on the petitioner.

When the testimony was taken the petitioner was of course confronted in the first place with the certificate made by himself among others to the correctness of the account, the integrity of which he was then attacking. His answer to this was that he had never signed such a paper. On this question the weight of the testimony was overwhelmingly against him. His denial stood unsupported and alone, while the genuineness of his signature was testified to not only by the accountants but by respectable counsel of the Philadelphia Bar, in whose presence the certificate had been signed. There was no proof to support his allegation that the interest of his father in the firm had been grossly or fraudulently undervalued, whilst the weight of the testimony clearly shows that the valuation represented the full worth of the interest.

As to the remaining cause of complaint set out in the petition, to wit: that the testator was not indebted to the firm at the time of his death, the petitioner seems to have relied on the proposition that the written articles of partnership, which were dated October 10, 1904, established that a full settlement had been made between the partners, and that by the execution of that instrument the parties had declared that any indebtedness theretofore existing between themselves had been settled and extinguished. We are unable to find in the instrument any evidence to support this contention. The paper itself recognizes the fact that a copartnership already existed and was engaged in the transaction of business, and as has already been stated, it provided that the testator was to have the exclusive control of the financial affairs of the firm. As the evidence of his indebtedness, the surviving partners produced a statement in the handwriting of the testator himself, under the date of June 9, 1904, setting out in detail certain sums of money which he had withdrawn from the business, the items aggregating $1,098.82, and this paper contained the statement, “ Due Harry and Willie one third each.” The petitioner was unable by evidence to overthrow the prima facie case thus made out by the testator himself.

Under these circumstances it is not easy to see how the learned court below could have done otherwise than dismiss the petition. In Kachline’s Estate, 7 Pa. Superior Ct. 163, this court defined the obligations necessarily assumed by a petitioner, who sought to have reviewed a former decree of the orphans’court, in the following language from the opinion of President Judge Rice : “ Accordingly it has been held in a long line of cases that a review can only be had as a matter of right in two cases: first, for error of law appearing on the face of the record; second, for new matter which has arisen after the decree. It may also be allowed ex gratia for new proof discovered after the decree, which, by reasonable diligence, could not have been produced or used before the decree was made. , , , An application of the latter nature being addressed to the sound discretion of the court, unreasonable delay without excuse is a circumstance which cannot be ignored. We are not required in the present case to say that it will, of itself, bar relief, but it is perfectly safe to say that it is a strong reason for requiring strict proof of the facts necessary to give the court jurisdiction.”

In the light of the principle thus laid down, the accuracy of which cannot be questioned, we think the weakness of the petitioner’s case is sufficiently shown in the following excerpt from the opinion of the learned court below: “We might dismiss the petition solely upon the ground that with reasonable diligence the petitioner could at any time have discovered the alleged errors of which he now complains: Kachline’s Estate, 7 Pa. Superior Ct. 163; Le Moyne’s Appeal, 104 Pa. 321. We think it proper to say in addition that no evidence has been presented which would justify us finding that the settlement of the testator’s partnership business was tainted with fraud: Gebbie’s Estate, 7 Pa. Dist. Rep. 675; Marr’s Appeal, 78 Pa. 66; and furthermore, that we are convinced that no material benefit would inure to the petitioner were we to grant him the review asked.” The assignments of error are overruled and the appeal is dismissed at the costs of the appellant.

Decree affirmed.


text:
    Casey v. Canning, Appellant.

      Trespass — Pleading—Statement of claim, — Demurrer.
    1. In an action of trespass to recover damages for injuries to real estate, the statement of claim is not demurrable, if it avers occupancy of premises by plaintiff’s tenant, and also the fact that the premises had appurtenant thereto a certain construction and necessary appliances thereunto belonging of which plaintiff and the tenant long had peaceable use and quiet enjoyment, and the fact that defendant wrongfully, maliciously and injuriously deprived plaintiff’s premises of the use of the construction and appliances, to the injury of her reversionary estate,

      Practice, C. P. — Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.
    2. Unless the amount of damages in an action of tort is agreed upon, or is admitted by the defendant, or is so clearly established by undisputed evidence that the court could give binding directions upon that matter, the court is not in a position on a motion for judgment for plaintiff non obstante veredicto, to determine what judgment, in its entirety, should be entered on the evidence, and hence is not in position to enter a judgment contrary to a verdict in favor of the defendant. There is nothing in the Act of April 22, 1905, P. L. 286, that contemplates the entering of an interlocutory judgment non obstante veredicto in favor of the plaintiff in an action of tort, to be followed by a writ of inquiry to assess the damages.
    3. Where in an action of tort the court entered judgment for plaintiff non obstante veredicto but for no specific amount of damages, the appellate court in reversing will direct that judgment shall be entered for the defendant on the verdict without prejudice, however, to the right of the plaintiff to appeal from such judgment.
    Argued Oct. 21, 1908.
    Appeal, No. 48, Oct. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,862, for plaintiff non obstante veredicto in case of Louise E. Casey v. John Canning.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for injuries to land. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.

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

      D. Webster Dougherty, for appellant. —
    The court should have entered judgment for defendant on the demurrer: Monsarratt v. Trust Co., 14 Pa. Superior Ct. 541; Fritz v. Hathaway, 135 Pa. 274.
    We call the court’s attention to the fact that judgment has been entered for the plaintiff without any damages having been awarded.
    It may be doubted whether an action on the case where the plaintiff asks damages for illegal acts on the part of the defendant and where a verdict has been rendered for the defendant comes within the purview of the Act of April 22, 1905, P. L. 286, authorizing the court to enter judgment non obstante veredicto on the whole record.
    April 12, 1909:

      Roland R. Foulke, for appellee,
    cited as to the judgment non obstante veredicto: Dalmas v. Kemble, 215 Pa. 410; Murphey v. Greybill, 34 Pa. Superior Ct. 339.
    Cited as to the demurrer: Quick v. Miller, 103 Pa. 67; Weinberger v. Shelly, 6 W. & S. 336.
   Opinion by

Rice, P. J.,

This was an action of trespass. The demurrer to the plaintiff’s statement of claim having been overruled, the defendant pleaded not guilty and the case went to trial on the issue thus raised. The official report of the trial shows that at the conclusion of the evidence counsel for plaintiff and for defendant orally requested binding instructions in favor of their respective clients, and that the court virtually directed a verdict for the defendant, to which direction the plaintiff excepted. Later, verdict having been rendered in accordance with the court’s direction, the plaintiff moved for judgment non obstante veredicto upon the whole record in accordance with the provisions of the act of 1905. The court sustained the motion and entered judgment in plaintiff’s favor, but for no specific amount. The defendant excepted, appéaled and assigned for error the action of the court, (1) in not entering judgment in his favor; (2) in entering judgment for plaintiff non obstante veredicto; (3) in not entering judgment in his favor on the demurrer.

The demurrer was properly overruled. The statement of claim alleges: (1) the occupancy of certain described premises with the appurtenances by one Moriarity as the plaintiff’s tenant; (2) the fact that the premises had as appurtenant thereto a privy and privy well with the appliances thereunto belonging, of which the plaintiff and her predecessors in title and their tenants had long had the peaceable use and quiet enjoyment as appurtenant and necessary to the use of her lot; (3) the fact that the defendant “wrongfully, maliciously and injuriously” deprived the plaintiff’s premises of the use of the privy and privy well, and broke up, destroyed and carried away the appliances and fixtures appurtenant and necessary to the use and enjoyment of the same “ and belonging to plaintiff;” (4) injury to her reversionary estate of and in the premises and appurtenances in the occupancy of Moriarity; (5) damages to the plaintiff in the sum of $500. We deem the recital of the averments of the statement of claim in this condensed form a sufficient answer to the thirteen reasons assigned in support of the demurrer. But, noticing briefly the alleged defects of which the defendant chiefly complains, we remark that the statement by reasonable intendment avers plaintiff’s title as reversioner with sufficient certainty to enable her to maintain an action against a mere wrongdoer, as defendant is plainly alleged to be, and avers in express terms her ownership of the appliances and fixtures, which, it' is alleged, the defendant wrongfully and maliciously broke up and carried away. The extent of recovery that could be had under the statement and the measure of damages depended on the proofs adduced at the trial, but that the plaintiff could recover nothing, even though she proved every fact alleged in the statement, and nothing were shown to controvert or qualify the facts alleged, is a proposition we cannot accede to. The third assignment is overruled.

The next question to be considered is as to the regularity of entering judgment for the plaintiff non obstante veredicto. The question of practice is well worthy of consideration, and is distinctly raised by the appellee’s counsel. If the case stood as at common law, there would be a sufficient cause of reversal in that the judgment is repugnant to the verdict. But by sec. 5 of the Act of March 28, 1835, P. L. 88, extended to judges of the common pleas by the Act of April 22, 1863, P. L. 554, power was given to reserve questions of law argued on the trial of a cause, “for the consideration and judgment of all the judges of the court sitting together,” and this grant of power was held to carry with it by implication authority to enter judgment for the defendant non obstante veredicto. But, where, under these statutes, a verdict is taken subject to the opinion of the court upon questions of law reserved, it should be rendered in favor of the plaintiff; otherwise, if the decision be for the plaintiff no judgment can be rendered in his favor: Robinson v. Myers, 67 Pa. 9; State Bank v. McCoy, 69 Pa. 204; Morris v. Ziegler, 71 Pa. 450; Glading v. Frick, 88 Pa. 460; Hosler v. Hursh, 151 Pa. 415; Ringle v. Penna. R. R. Co., 164 Pa. 529. This defect was remedied by the Act of April 22, 1905, P. L. 286, which provides, inter alia, that whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined the party presenting the point, may, within certain limitations as to time, move the court to have all the evidence taken upon the trial duly certified and filed, so as to become part of the record, and for judgment non obstante veredicto upon the whole record; whereupon it becomes the duty of the court, if it does not grant a new trial, to certify the evidence, and to “enter such judgment as should have been entered on that evidence. ” In Dalmas v. Kemble, 215 Pa. 410, Chief Justice Mitchell, after commenting on the practical reforms for facilitating the business of the courts which had been wrought by the acts relative to reservation of questions of law and compulsory nonsuits, clearly stated the intent of the act of 1905 in language which is so pertinent here that we quote it at length: “The act of 1905 is another step in the same direction. It broadens the power of the judge in this respect, that whereas, heretofore the verdict was required to be for the plaintiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for binding direction to the jury and may be for either plaintiff or defendant. But though thus enlarged so as to include both parties, the power of the judge is the same as it was before. He is ‘to enter such judgment as should have been entered upon that evidence/ or in other words, to treat the motion for judgment as if it was a motion for binding directions at the trial, and to enter judgment as if such direction had been, given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction then there can be no judgment against the verdict now. As already said there is no intent in the act to disturb the settled line of distinction between the provinces of the court and the jury. The act is capable of usefulness in allowing time for mature consideration, but it should not be carried beyond its legitimate intent.” See also Ackley v. Bradford Twp., 32 Pa. Superior Ct. 487; Murphey v. Greybill, 34 Pa. Superior Ct., 339; Hygienic Fleeced Underwear Co. v. Way, 35 Pa. Superior Ct. 229, where these principles have been applied by this court. The expression “binding instructions” may be used in reference to one or more branches of the issue being tried, but it is more commonly used, and evidently was used in this statute, to indicate, instructions covering the entire issue and directing a verdict upon which a final judgment can be entered concluding the parties as to every matter in issue. To illustrate by the present case, the plea of not guilty, put in issue the plaintiff’s right, the alleged trespass, and the amount of damages alleged to have been sustained. Assuming for present purposes, without deciding the point, that under all the evidence in the case it was the province of the court to direct a finding in favor of the plaintiff as to the first two elements of the issue, still as it was the province of the jury to determine the amount of damages, clearly the court could not have given binding direction in favor of the plaintiff that would have withdrawn from the jury the determination of the latter question. To state the proposition in another form, the duty of the court is “to enter such judgment as should have been entered on that evidence.” Unless the amount of damages in an action of tort is agreed upon, or is admitted by the defendant, or is so clearly established by undisputed evidence that the court could give binding direction upon that matter, the court is not in position to determine what judgment, in its entirety, should be entered on the evidence, and hence is not in position to enter a judgment contrary to a verdict in favor of the defendant. It is suggested in the able brief of appellee's counsel that the predicament that the plaintiff is in, is having a judgment without damages, jffiat this is the necessary consequence of the act and is easily remedied when the judgment is affirmed by this court, if damages are asked for by writ of inquiry, as in other cases where a verdict is rendered without damages being assessed. We cannot agree that the statute contemplates the entering of an interlocutory judgment non obstante veredicto in favor of the plaintiff in an action of tort. The purpose of the act was to shorten litigation, not to give opportunity to prolong it, as would be the result if it were to be construed to authorize the court to enter an interlocutory judgment for the plaintiff in such a case and in such circumstances as we have under consideration. Taking this view of the question of practice, we decline to discuss the merits of the case.

The judgment is reversed and judgment is directed on the verdict without prejudice, however, to the right of the plaintiff to appeal from such judgment.


text:
    Woldert Grocery Company v. Wilkinson, Appellant.

      Contract — Sale—Breach—Measure of damages.

    In an action to recover the price of a carload of Pecan nuts ordered in Texas and shipped to Philadelphia, it appeared that before the nuts were shipped from Texas, defendant attempted to repudiate the contract, but to this the plaintiff refused to consent. At the time the goods were shipped, the nuts had fallen so much in price in Texas that only a nominal sum could have been realized from their sale. When the car arrived in Philadelphia, it was opened by defendant, and after inspection of the nuts, they refused to take them on the ground that they were not up to the quality contracted for. The plaintiff’s agent sold the goods in Philadelphia. Held (I), that the verdict of the jury in favor of the plaintiff established that the quality of the nuts was up to the contract standard, and that the defendant’s breach was without justification; and (2) that the measure of damages was the difference between the contract price and the fair market value of the goods at Philadelphia at the time of the breach.
    April 12, 1909:
    Argued Oct. 22, 1908.
    Appeal, No. 94, Oct. T., 1908, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 349, on verdict for plaintiff in case of Woldert Grocery Company v. James Wilkinson et al., trading as C. Wilkinson’s Sons.
    Before Rice, P. J., Pobtee, Hendeeson, Mobbison, Oblady, Head and Beaveb, JJ.
    Affirmed.
    Assumpsit to recover for breach of contract of sale.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,256.50. Defendants appealed.

      Errors assigned were various rulings on evidence not incorporating in the assignments the evidence admitted, various refusal of points without setting forth the refusal totidem verbis, and certain instructions as to the measure of damages sufficiently appearing in the opinion of the Superior Court.

      William MacLean, Jr., and William B. Crawford, for appellants. —
    If the appellee elected to regard the countermand as a breach of the contract then it was its duty to sell the nuts promptly, or at the latest at the time when the car should have been delivered in Texas to the appellants, and at the market value at that time and place: Laubach v. Laubach, 73 Pa. 387; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Guillon v. Eamshaw, 169 Pa. 463; Hooper, Seving & Co. v. Bromley Bros. Carpet Co., 11 Pa. Superior Ct. 634; Boyd v. Merchants’, etc., Peanut Co., 25 Pa. Superior Ct. 199.

      Samuel Scoville, Jr., with him Harris S. Sparhawk and Charles H. Edmunds, for appellee.
   ■Opinion by

Head, J.,

It is conceded the plaintiff company and the defendants entered into a contract, the former to sell, the latter to buy, a car load of pecan nuts. The contract, made in August, 1902, as to quality of goods and time of shipment, provided as follows: “ better than ave. of S. W. Texas. Ship not later than 15th Nov. 1902.” By a letter dated October 23,1902, the defendants undertook, of their own motion, to cancel the contract. To this the plaintiff refused to assent, and so notified defendants. On November 8, plaintiff wired defendants that the car of pecans was loaded and that, “unless otherwise instructed will leave Monday via Galveston for Philadelphia.” To this there was no reply. The car was shipped and the defendants advised by wire of its due time in Philadephia. As to the manner of shipment the following testimony is undisputed: “The car was shipped to Woldert Grocery Co. at Philadelphia, notify C. Wilkinson and Sons, bill of lading attached to draft. The pecans were to be delivered on presentation of bill of lading which was attached to the draft to the amount of the invoice. This is the customary way of shipping pecans out of Texas.”

The shipment consisted of 279 sacks of nuts. Upon the arrival of the car in Philadelphia, the defendants, having first secured the services of an expert, took him to the car and had him open some of the sacks, twenty-five as he testifies, and inspect the contents. They themselves opened perhaps as many more. On December 1 they wired to plaintiff, “cannot accept car pecan nuts, they are not up to grade as per contract;” and on the same day confirmed this by a letter more fully stating the result of the inspection and their determination to reject the nuts because of their alleged inferior quality. Thus was raised an issue of fact, the only one as to which the testimony developed any serious contention between the parties. As the case was tried this question was fairly submitted to the jury, and their verdict conclusively establishes that the quality of the nuts was up to the contract standard and the defendants’ breach was without justification. What then was the true measure of plaintiff’s damages?

The appellants present twenty-two assignments of error. The first, second, third, sixth,, eighth, ninth, thirteenth, fifteenth, seventeenth, eighteenth and nineteenth are manifestly in violation of the rules of this court, and the motion to quash them must be granted. The remaining assignments may be grouped together, and the substantial questions raised by them we will now briefly consider.

It is first contended that the point of delivery, under the contract expression “f. o. b. Texas,” was Texas. That if the plaintiff, accepting the letter of October 23 as a final repudiation of the contract by the defendants, chose to exercise its right to sell the goods on the market, and recover, as damages, any difference between the contract price and the market price, it was obliged, under the law, to select the market existing at the time and place named for delivery, and therefore should have sold the nuts in Texas. To this proposition the record discloses two answers. After the plaintiff had given notice of its determination not to permit a cancellation of the contract, it was not obliged to assume that if the car reached its destination in due time, loaded with the quantity and quality of goods contracted for, the defendants would insist on a fiat repudiation of their engagement. Every fair presumption of law or morals would seem to support the opposite conclusion. And so it appears that when the car reached Philadelphia, the defendants themselves were not willing to stand on the ground that they had already and finally repudiated their contract. They then undertook, as already stated, to open up the goods, inspect the quality and then by telegram and letter based their final rejection on the allegation that the plaintiff had failed to comply with the contract. Had the controlling fact been found by the jury in their favor, their position would have been impregnable and the plaintiff left without a cause of action. With the finding adverse to them they are in no position to assert that they had finally committed themselves to a repudiation of their contract before the car left Texas.

But the testimony shows, and it is uncontradicted, that when the time for shipment, fixed by the contract, had arrived, the Texas market had “slumped,” “there was no market,” and that if a sale had been forced there, only a nominal price for the goods would have been received. Without attempting to recite the testimony in detail we may say it further appears that, by bringing the car of nuts to Philadephia, and then going to the further expense of having them polished to meet the demand of the trade there, the plaintiff reached the best market available, so far as the evidence tends to show, and thus honestly sought to minimize for itself and the defendants as well, the injurious consequences of the wrongful breach of the contract by the latter. Upon what theory then may the defendants be heard to complain? There is no hard and fast rule of law declared by statute or otherwise that undertakes to prescribe precisely what a vendor of goods must do after he has performed his part of the contract of sale and is confronted by an unwarranted refusal on the part of his vendee to receive the property. The general rule, in the absence of peculiar and qualifying conditions, doubtless is as contended for by the appellants: Hooper, Seving & Co. v. Carpet Co., 11 Pa. Superior Ct. 634; Guillon v. Earnshaw, 169 Pa. 463; Moody v. McTaggart, 29 Pa. Superior Ct. 465. The following language, quoted from the opinion of Beaver, J., in the case last cited, seems to us to precisely fit the case at bar: “What the plaintiffs did was evidently in the interest, and for the benefit, of the defendants and we know of no legal ground or principle of equity on which they will be heard to successfully claim that the plaintiffs should have sued them for the entire purchase price of the cargo of coke rather than for the amount which remained after deducting the amount for which they were enabled to sell it in the best market, at the best price obtainable.” So we say here. It having been established that the defendants unwarrantably repudiated their contract and left the goods they had agreed to buy in the hands of the vendor, a legal liability to pay the consequent damages arose. The whole of the evidence clearly points to the.conclusion that the measure of these damages applied by the learned trial court and adopted by the jury was at least as favorable to the defendants as any other that could have been followed.

The defendants were earnestly urged to keep their contract and accept the car; but they firmly adhered to the position that the goods offered were not those contracted for and hence they were not bound. They were notified that unless they accepted within three days “we would have to resell the car and sue him [them] for the difference.'

There was substantial evidence from the plaintiff’s, representative of the efforts he made to find the best buyer and of the condition of the market as disclosed by the offers he received during those efforts. It was surely competent for the jury to draw from this evidence the conclusion that the price actually received on the resale was certainly not less than the general market price. The instruction of the learned trial judge was: “ If you should find on this main question in favor of the contention of the plaintiff, then the plaintiff is entitled to receive at your hands by way of damages for the breach of the contract the difference between the contract price and the fair market value of the goods at the time of breach.” Of this the defendants cannot justly complain. Finding no reversible error in the record of the trial, the assignments of error not quashed must be overruled.

Judgment affirmed.


author: Per, Curiam,

text:
    Commonwealth ex rel., Appellant, v. O’Connell Construction Company.

      Bonds — Contract with commonwealth — Parties—Material man.

    A material man who has furnished material to a contractor for the construction of a state road cannot bring a suit in the name of the commonwealth to his own use on a bond of the contractor given to the state and conditioned for the due performance of the contract and to indemnify the state against liability for material furnished to the contractor.
    Argued March 4, 1909.
    Appeal, No. 76, April T., 1909, by plaintiff, from order of C. P. Lackawanna Co., May T., 1908, No. 16, sustaining demurrer to statement of claim in case of Commonwealth ex rel. to use of John T. Dyer Quarry Company v. The O’Connell Construction Company and The Title Guaranty & Trust Company of Scranton, Pa.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a bond.

      Newcomb, J., filed the following opinion:
    The construction company, defendant, gave bond to the commonwealth with the Title Guaranty Company, codefendant, as surety. It was conditioned for the due performance, by the principal, of its contract with the state for the construction of a road in Chester county, under the provisions of a statute. It was also conditioned to indemnify the state against liability for material furnished to the contractor. A copy of the bond is made part of plaintiff's declaration. The only cause of action attempted to be therein averred is that plaintiff company “furnished material for use in the said construction for which it has not been paid, there being a balance due at this time of $365.09, the items of which are set forth particularly in a statement attached hereto,” etc.
    As against the construction company alone this, at best, suggests a liability without distinctly showing it. As against the two defendants it may be assumed that the attempt was to deduce a joint liability from the obligation of the bond-. But, to that instrument this plaintiff is neither a legal nor equitable party. Aside from that, liability on the bond can arise only from breach of its conditions.
    For the sake of illustration it may be assumed that the claim is for materials furnished at the instance of the principal in the bond for use in the performance of its contract, to secure which the bond was given. That would make the contractor liable, and failure or refusal to pay “a balance due,” would be a breach of its contract with plaintiff; but not a breach of any condition of the bond. Breach of the bond arising from that source can occur only in case the commonwealth becomes liable for the materials so furnished. And that liability can be enforced only at the suit of the commonwealth. The mere circumstance that the commonwealth is named in the caption as the legal plaintiff in this action does not tend to show that it is asserting a breach.
    The declaration is radically defective and the demurrer is sustained.

      Error assigned was the order of the court.

      April 19, 1909:

      A. A. Vosburg, with him L. M. Childs and C. W. Dawson, for appellant.

      Willard, Warren & Knapp, for appellee.
   Per, Curiam,

This is an appeal from the order of the court below, sustaining the defendant’s demurrer to the plaintiff’s statement of claim. To obviate the possible objection that this is not a final judgment, counsel by writing filed, agreed that the case might be considered at issue as if a replication had been filed to the demurrer, and “that the judgment entered by the court be considered as a definitive decree.” Thus viewing the appeal, we conclude after due consideration, that the action of the learned judge below is fully vindicated by the opinion filed by him.

The judgment is affirmed.


author: Morrison, J.,

text:
    Commonwealth v. Moll, Appellant.

      Criminal law — Concealing birth of bastard child — Misdemeanor—Act of March 31, 1860, secs. 89 and 180, P. L. 382 — Charge.
    1. A person who aids and abets a woman in concealing “the death of any issue of her body, male or female, which, if it were born alive, would by law be a bastard, so that it'may not come to light, whether it was bom dead or alive,” is guilty of a misdemeanor under secs. 89 and 180 of the Act of March 31, 1860, P. L. 382.
    2. In such a case where there is positive evidence of the innocence of the defendant, a conviction will be set aside where the charge as a whole does not offer a calm, judicial' amd impartial presentation of the case to the jury, and minimizes the effect of evidence that the prisoner was a man with a good reputation for chastity.
    Argued Nov. 16, 1908.
    Appeal, No. 199, Oct. T., 1908, by defendant, from judgment of O. & T. Franklin Co., Feb. T., 1908, No. 5, on verdict of guilty in case of Commonwealth v. D. C. Moll.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Indictment for aiding and abetting a woman in concealing the birth of her bastard child.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which the prisoner was sentenced to two years and six months in the penitentiary.

      Errors assigned were various instructions quoted in the opinion of the Superior Court.

      O. C. Bowers, with him Irvin G. Elder, for appellant. —
    This offense was unknown to the common law, and is purely of statutory creation. Inasmuch as the mother of a bastard is the person most interested in concealing the fact that she has been delivered of a child, and therefore being the person having the strongest motive to put it out of the way, it is not strange that the provisions of the act are directed against her and her alone. Of course, anyone who aids, assists or advises the putting away of a bastard child, is guilty of an offense against the law, but of a much more serious offense than the one provided against in this act: Frey v. Com., 83 Ky. 190; Stamper v. Com., 7 Bush, 612.
    . There was no sufficient evidence of the concealment of the death to support a conviction of either defendant: Reg. v. Sleep, 9 Cox’s Criminal Law Cases, 559; Reg. v. George, 11 Cox’s Criminal Law Cases, 41; Com. v. Clark, 2 Ash. 105.
    The language and tone of the charge to the jury was of such a character as to unduly affect the jury against the defendants or either of them: Linn v. Com., 96 Pa. 285; Coxe v. Deringer, 82 Pa. 236; Com. v. Cleary, 135 Pa. 64; Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322; Com. v. Cohen, 36 Pa. Superior Ct. 263.

      D. Edward Long, district attorney, for appellee. —
    In misdemeanors there are no accessories, either at common law or under the statutes of this commonwealth, all being regarded in law as principals. Therefore Moll is indicted as a principal and jointly with Hessler.
    That one, personally and alone, incapable of committing a certain crime, may be convicted of aiding and abetting in the commission of the crime, is not peculiar to the charge contained in the indictment in this case: 2 Wharton’s Am. Criminal Law, sec. 1134; Commonwealth v. Green, 19 Mass. 380; State v. Sprague, 4 Rhode Island, 257; Regina v. Bird and Nash, 2 Car. and Kirwan, 817; Rex v. Douglas and Hall, 7 Car. and P. 644.
    April 12,1909:
    The commonwealth contends that there is ample evidence of concealment to support the verdict. The charge was not improper: Com. v. Van Horn, 188 Pa. 143; Com. v. Cohen, 36 Pa. Superior Ct. 263; Com. v. Belserawitz, 35 Pa. Superior Ct. 77.
   Opinion by

Morrison, J.,

The defendant was jointly indicted, tried and convicted with Florence Hessler under the provisions of the Act of March 31, 1860, sec. 89, P. L. 382, which reads: “If any woman shall endeavor privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, which, if it were born alive, would by law be a bastard, so that it may not come to light, whether it was born dead or alive, or whether it was murdered or not, every such mother being convicted thereof, shall suffer an imprisonment by separate or solitary confinement at labor, not exceeding three years,” etc.

Before pleading, the defendant’s counsel moved to quash the indictment, mainly on the ground that Moll was charged with no offense known to the law. The learned court below sustained the indictment and in an opinion filed, held: First, that the offense was not a felony at common law and not being made so by statute and the act itself being silent as to whether it is a felony or a misdemeanor, it must be held to be a misdemeanor, citing State v. Murphy (R. I.), 16 L. R. A. 550. In this conclusion we agree with the court below. Section 180 of the Act of March 31, 1860, P. L. 382, reads: “And every person who shall counsel, aid or abet the commission of any misdemeanor, punishable under this act, for whom no punishment has heretofore been provided, shall be liable to be proceeded against and punished as the principal offender.” The learned court below, in support of the indictment, quoted from Bishop’s New Criminal Law, vol. 1, sec. 689: “The peculiar nature of a crime may be such that it can be committed only by a personal doing of the forbidden thing. Probably crimes of this sort are not numerous. Thus, rape, a boy physically incapable, or a woman, may become a principal offender in rape by abetting a capable person. Surely, therefore, most other offenses can be committed in like manner.” Section 1135, vol. 2 of the same work states it thus: “Persons present, abetting, where rape is felony, and a fortiori where it is misdemeanor, are principals in equal legal guilt with the direct perpetrator.”

In Rhode Island, the statute provides as follows (sec. 86): “Every woman who shall be convicted of concealing the birth of any issue of her body which if born alive would be a bastard, so that it may not be known whether it was born dead or alive, or of concealing the death of any infant bastard child born of her body, so that it may not be known whether such child was murdered or not, shall be imprisoned not exceeding ten months, or be fined not exceeding $300.” Section 120 of the same statute reads: “Every person who shall aid, assist, abet, counsel, hire, command or procure another to commit any crime or offense, shall be proceeded against as principal, or as accessory before the fact, according to the nature of the offense committed. And upon conviction shall suffer a like punishment as the principal offender is subjected to by this act.”

In State v. Sprague, 4 R. I. 257, David and Cynthia Sprague were charged with concealing the birth of a bastard child, born of the body of Jane Fowle, the said Jane Fowle not being charged with the offense. It was held that the defendants could not be convicted unless upon an indictment which charges the mother of the bastard also with the offense; the words and policy of the act contemplating no such crime, unless the mother be a participator in it. In that case Ames, C. J., said: “Now, we have no doubt but that a person who aids, abets, counsels, commands or procures the commission of this offense, peculiar as it is, and especially as it contemplates, in the language and policy of the statute, the mother as the principal actor in it, may be guilty of it as a principal offender, and of course, upon an indictment properly framed, be legally convicted of it, as such. It by no means follows, that because the mother alone can be guilty of the actual concealment described in the statute, and that if she be not guilty no other person can be, — that if she be guilty, others may not be guilty as principals, present, in the sense of the law, and aiding and assisting her in the criminal concealment, and participating in and working with her under the criminal intent.”

We are of the opinion that the learned court did not err in sustaining the indictment and holding that the defendant Moll and the mother of the bastard child could be jointly indicted, tried and convicted of the offense charged in the indictment. The third assignment of error is dismissed. ■

The first assignment of error is: “That as to D. C. Moll, the one defendant, there is no evidence in the case which is sufficient to convict him of the crime charged in the indictment.” The point embraced in this assignment was refused by the court. A careful consideration of the evidence convinces us that it was sufficient to carry the question of the guilt of Moll to the jury. It is true that the evidence is circumstantial and there is the positive evidence of the defendant and of Florence Hessler, the other defendant, which, if believed by the jury would require a verdict of not guilty as to Moll. But, considering all of the circumstances in evidence, we are not prepared to say that the jury might not have drawn proper and legitimate inferences sufficient to warrant the conviction of Moll. The view we take of the case requires a reversal as to Moll and renders it unnecessary to marshal or comment upon the testimony bearing against him. The first assignment is dismissed.

The fifth, sixth, seventh, eighth, ninth and tenth assignments of error are excerpts from the charge and they ask for a reversal of the judgment as to Moll because of the alleged unfair and improper language of the court therein specified which the learned counsel contends unduly affected and prejudiced the jury against Moll. We have carefully examined the charge as a whole and feel compelled to say that it is not such a calm, judicial and impartial presentation of the case to the jury as is called for, especially in a criminal case where the commonwealth relies on circumstantial evidence and there is positive evidence of the innocence of the defendant. We do not propose to discuss all of the assignments of error, but will refer to some of them.

Take the sixth: “This child was born in the slop jar, and removed from there to the suit case by the defendant, Florence Hessler, but there were no marks of that about the room. Did not some person clean up that room to some extent before anyone got in there?" The jury might infer from this that the court had in mind that Moll had cleaned up the room, but if the girl was able to take the child out of the slop jar and hide' it in the suit case, it is not impossible that she may have cleaned up the room.

Seventh assignment: “Again, he said the girl was sent here because his father was to be moved here, and he intended to rent a house here and make her housekeeper for them, for him and his father. You will ask yourselves the question then, why was not the house procured first? And why was the girl sent here to a hotel, to live in a hotel, while he would find a house? He did not come here for ten days after.” When it is recalled that the child was born in the latter part of November and that there is considerable evidence that the girl, Moll and his wife did not expect her to be confined till January or February following, it does not appear so strange that she was sent to the hotel a few days before a house was attempted to be secured. It is in evidence that the girl desired to leave her home and remain away until after her child was born, and she may have been sent to the hotel to gratify her desire. But the learned court intimated nothing of this kind to the jury.

The eighth assignment: “Again, if there was no community of interest between these people, why was it that Moll when he came here happened to strike the very hotel where the girl was stopping? Why was it he inquired there for the girl?” This was very unfair to the defendant, Moll. The evidence shows that the girl went to the hotel with the consent of Moll; that he was to come later and secure a house for her and his father to live in, and of course, he would go to the hotel and inquire for the girl if the facts were as his testimony and hers and Mrs. Moll’s indicates. We sustain the assignments of error from the fifth to the tenth, inclusive.

The eleventh assignment: “I might say further, I think, speaking for myself only, you are to be the judges, that in offenses connected with the gratification of the animal passions a good reputation does not stand us in very much stead. Old King David was supposed to be a man of good reputation, but as he walked upon the roof and saw the woman, he could not restrain himself, and not only did he seek her person, but had her husband killed in order that he might gratify his passion.” King David’s reputation for chastity was not pertinent in this case and the language of the court was quite improper and out of place, and it may have caused the jury to disregard the evidence of Moll’s character. He had offered some competent evidence that he was a man with a good reputation for chastity. It was proved and conceded that he resided with his wife; that they had brought Florence Hessler up from childhood, and the evidence was quite convincing that Moll was not the father of her child but that her trouble was caused by one Harry South. Both she and Moll testified that the latter had never had sexual intercourse with her. It is quite apparent that the commonwealth and the court expected the jury to infer that Moll was the father of the child. In the situation the defendant found himself, we think, it was quite material for him to offer evidence of his good character for chastity. If he convinced the jury that he enjoyed such a reputation, they would not be so likely to believe that he was assisting Florence Hessler in concealing the birth of her bastard child, because, if he was not the father of the child, he would not be so anxious to conceal its birth as he would if the child were his. The testimony in favor of the defendant’s good character for chastity was in support of a substantive defense, and if it convinced the jury that the defendant enjoyed a good reputation in that respect, it might have raised, in the mind of the jury, a reasonable doubt which, along with the positive evidence of the defendant and the girl, would have led to the acquittal of Moll. We regard it as highly improper for the court to say to the jury “that in offenses connected with the gratification of the animal passions, a good reputation does not stand us in very good stead.” Then following this with the remarks about old King David was calculated to utterly destroy the effect of the evidence of good reputation as to chastity. There may be some such theory as indicated by the court in the minds of some persons, but under the law, evidence of good reputation for chastity is in support of a substantive defense, and is important, and it should be fairly submitted to the jury and left to them to estimate its worth.

Counsel for the commonwealth argues that Moll’s reputation for chastity is irrelevant and immaterial. If it was not relevant and material the court should have excluded it. But, in our opinion, it was both material and relevant.

Counsel for appellant cites Coxe v. Deringer, 82 Pa. 236, and refers to Judge Agnew’s criticism of the charge on p. 258, and also cites Linn v. Com., 96 Pa. 285, where Judge Paxson said of the charge: “This language is-intemperate and unfair. It is many degrees removed from the dignity and impartiality which should mark the judicial character. It is far more objectionable than the charge which this court pointedly condemned in Coxe v. Deringer, 82 Pa. 236, for the reason, amongst others, that Coxe v. Deringer was a civil case, while the issue here involved both infamy and imprisonment.”

We do not wish to be understood as holding that the charge in the present case goes to the extreme mentioned in the above-quoted cases. But we do say that the present charge is not of that calm, impartial and dignified character that is called for, especially, in a criminal case involving both infamy and imprisonment. The language quoted in the eleventh assignment is not proper coming from the court to a jury when giving instructions as to the effect of evidence of good character, offered on the part of the defendant. There is nothing in Moll’s appeal calling for comment on the second assignment. The fourth assignment is the same as the eleventh. The eleventh assignment is sustained.

The judgment is reversed with a venire facias de novo.

Rige, P. J., Porter and Head, JJ., dissent.


text:
    Commonwealth v. Hessler, Appellant.
    April 12, 1909:

      Criminal law — Concealment of birth of bastard child — Evidence.
    On an indictment against a woman for concealing the birth of a bastard child, a conviction will be sustained where the evidence shows that the prisoner wrapped the child in paper and placed it in a suit case with clothing, that she succeeded in concealing the body in this way for two days after the birth, that she intended to carry the child away and bury it, and did not disclose where it was, until the doctor threatened to call in an officer.
    Argued Nov. 16, 1908.
    Appeal, No. 200, Oct. T., 1908, by-defendant, from judgment of O. & T. Franklin Co., Feb. T., 1908, No. 5, on verdict of guilty in case of Commonwealth v. Florence Hessler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for concealing the birth of a bastard child. Before Gillan, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which the prisoner was sentenced to one year in the penitentiary. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      O. C. Bowers, with him Irvin C. Elder, for appellant.

      D. Edward Long, district attorney, for appellee.
   Opinion by

Morrison, J.,

This is an appeal by the defendant from the judgment in the same case wherein we have filed an opinion this day in the appeal of D. C. Moll at No. 199, October Term, 1908, ante, p. 107. We cannot see that any of the errors mentioned in that opinion could have injured the defendant Florence Hessler who was jointly indicted and tried with Moll. The only assignment of error as to her appeal is that there was, “no evidence in the case which is sufficient in law to convict her of concealing the death of her bastard child in order that it might not come to light whether it was born dead or alive, or whether it was murdered or not; that the placing of the body of the child in an unlocked suit case, leaving it in plain view for two days in a room, was not a concealment within the eye of the law, and not such a concealment of the child or of the fact of its birth as will support a conviction of the crime charged against her in this indictment, especially in view of the fact that she, when requested by the physician, revealed to him the whereabouts of the body of the child.”

We have examined the evidence with care and with a purpose not to sustain a conviction of this unfortunate young girl •on insufficient evidence, but our conclusion is that the evidence was sufficient to warrant the jury in finding her guilty. She wrapped the child in paper and placed it in a suit case with clothing, and it is clear from the evidence that.it could not have been seen without opening the suit case and probably removing some of the contents. In addition to this, according to the theory of the defense, she did succeed in concealing the child from everybody for two days after its birth, and she did not disclose where it was until the doctor threatened to call in an officer. She says that she intended to carry the child away and bury it, and, if she had not been compelled to call in a doctor, the jury could infer that she might have done this and thus placed it out of the power of anyone to ascertain whether the child was born dead or alive. The case was for the jury and as to this defendant we think it was fairly submitted.

The assignment of error is dismissed and the judgment is affirmed and the court below will cause it to be carried into execution.


text:
    Laukhuff's Estate.
    April 12, 1909:

      Rules of court — Procedure—Pending litigation — Orphans’ court — Construction of rules.

    1. A rule of court which relates only to procedure and in no way affects rights of the parties, is applicable to future procedure in pending litigation.
    2. On a question of the construction or application of its own rules, a court can be reversed only for manifest and material error.

      Orphans’ court practice — Register of wills — Appeals—Petition for citation — Rules of court — Procedure—Pending litigation.

    3. A rule of the orphans’ court, which provides that after an appeal has been taken from the register of wills, the appellant shall file in the orphans’ court a petition for citation setting forth the facts and circumstances of the case, applies to an appeal pending at the time of the adoption of the rule; and if the appellant has had sufficient time and opportunity to comply with the rule, and has failed to do so, his appeal will be dismissed.
    Argued Nov. 11, 1908.
    Appeal, No. 223, Oct. T., 1907, by William Rock, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 56, dismissing appeal from decision of Register of Wills in Estate of Andrew Laukhuff, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from register of wills. Before Smith, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court dismissing the appeal.

      B. F. Davis, for appellant.

      Chas. W. Eaby, for appellee.
   Opinion by

Rice, P. J.,

This appeal of William Rock is from a decree of the orphans’ court dismissing his appeal from the decision of the register of wills revoking letters of administration granted to him and granting letters to Carrie Laukhuff McIntosh. There was an appeal by the same appellant from a former decree of the orphans’ court quashing his appeal from the register, which resulted in a decree of this court, affirmed by the Supreme Court, reversing the decree of the orphans’ court and remitting the case with a procedendo. For a more detailed statement of the prior proceedings and the grounds of our former decree we refer to Laukhuff’s Est., 32 Pa. Superior Ct. 538; s. c., 218 Pa. 585. After our decision, but, according to the date given in the appellee’s paper-book, before the decision by the Supreme Court, the orphans’ court adopted a rule, which, so far as material here, reads as follows: “In all cases where any party in interest shall take an appeal from a judicial act or decision of the register, the appellant shall present a petition to the court, setting forth what has been done and the facts and circumstances upon which he relies; whereupon, if such facts and circumstances appear to be prima facie sufficient, a citation will be granted on all parties interested (whose names must be set forth in the petition) to show cause why the said appeal should not be sustained, and the judicial act or decision complained of set aside.” The docket entries show that on September 16, 1907, the appeal from the register was ordered on the argument list, and on October 10, 1907, was argued; but the record fails to show what occurred on the hearing, or what evidence, if any, was offered or that the appellant had complied with the rule of court by presenting a petition to the orphans’ court and causing a citation to be issued and served. There was, it is true, attached to the paper addressed to the register, appealing from his decision to the orphans’ court, an affidavit setting forth some of the facts upon which the appellant relied to sustain his complaint against the decision of the register, but this, it is apparent, was not a strict compliance with the rule. For this reason, and also because no bond had been given as specified in the Act of June 6, 1887, P.L. 359, the court dismissed the appeal. We held in the former case that an appeal from the register in such a case as this is of right, and that it is not necessary to secure the allowance of the orphans’ court, as seemed to be required by the rule of that court then in force. But we said in the same case that after the case is brought into the orphans’ court, a proper practice is for the appellant to present a petition to the court setting forth the facts in the case, upon which a citation will be granted on the parties interested to show cause why the appeal should not be sustained and the decision complained of set aside; an issue is thus presented for the determination of the court as a question of law or fact as the case may be. The rule of court under consideration is in accordance with the principle of orderly procedure above indicated, and is so plainly reasonable, and within the power of the orphans’ court to adopt, as not to require discussion of those points. Even if it be conceded that the rule required the appellant to do something in order to bring the case to hearing in an orderly way, which he would not have been compelled to do by the statute if the rule had not been made, it does not necessarily follow that it is in contravention of law: Standard Underground Cable Co. v. Johnstown Telephone Co., 26 Pa. Superior Ct. 432, 435. Nor can we see that there is any substantial doubt of its applicability to this case. True, the appeal was pending at the time the rule was adopted, but judging from the docket entries, which with the opinion of the learned judge below, are all we find in the record to guide us, the appellant had ample time and opportunity to have complied with the rule between the date of the decision of the Supreme Court and the date when the appeal came on for argument. No reason for his not complying with it is discernible upon an inspection of the record and proceedings. The appellant cannot say, as matter of law, that the rule is applicable only in. appeals taken after its adoption. It relates only to procedure and in no way affected the rights of the parties, and therefore was applicable to future procedure in the pending litigation: Kille v. Reading Iron Works, 134 Pa. 225; Lane v. White, 140 Pa. 99; Krause v. Penna. R. R. Co., 4 Pa. C. C. Rep. 60, and cases cited by Judge Arnold at page 63. This distinguishing principle has been recognized in the construction of legislation, and the court below ought not to be convicted of error in holding it applicable in the construction of its own rule. On a question of the construction or application of its own rules a court can be reversed only for manifest and material error: Webster v. Monongahela, etc., Coal & Coke Co., 201 Pa. 278; Trescott v. Co-operative Building Bank, 212 Pa. 47; Kunkle’s Estate, 21 Pa. Superior Ct. 200, and cases cited on page 205. Upon a full consideration of the question of practice, we conclude that the court committed no error in dismissing the appeal because its rule had not been complied with.

The decree is affirmed at the costs of the appellant.