text:
    519 A.2d 951
    SEALS, INC., Appellant, v. The TIOGA COUNTY GRANGE MUTUAL INSURANCE COMPANY, a/k/a Tioga Mutual Insurance Co.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Dec. 16, 1986.
    Reargument Denied Jan. 26, 1987.

      Robert A. Eckenrode, Williamsport, for appellant.
    David Mills, York, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   BECK, Judge:

This is an appeal from a judgment entered on a jury’s verdict for appellee-insurer in an assumpsit action to recover under a policy of fire insurance. The appeal presents the following three questions:

1. In an action by an insured-corporation under a fire insurance policy where the insurer raises the affirmative defense of arson by the President and sole shareholder of the insured, is evidence of the suicide of the President and sole shareholder ten days after the fire admissible as circumstantial evidence of arson?

2. In such an action, is evidence suggesting that ten days after the fire, the President and sole shareholder of the insured murdered his girlfriend, on whom he depended to provide his sole alibi as to his whereabouts at the time of the fire, admissible as circumstantial evidence of arson?

3. In such an action, should the trial court have granted a compulsory nonsuit at the close of the insured’s evidence as to that portion of the insured’s claim relating to the inventory destroyed in the fire on the ground that the insured had no insurable interest in the inventory, where the insured did not have any legal or equitable title to the inventory but depended on the proceeds from the sale of the inventory for payment of franchise fees and rent from the inventory owners and submitted evidence to show that it was co-obligated with the owners on a Note (or the obligation underlying the Note) which the owners repaid from the proceeds of inventory sales?

As to the first two of these issues, our standard or review is quite limited. A ruling on evidence will constitute reversible error only if the complaining party shows that the ruling was both erroneous and harmful to him. Bessemer Stores v. Reed Shaw Stenhouse, 344 Pa.Super. 218, 224, 496 A.2d 762, 765 (1985); Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). Only if both error and prejudice are shown can we conclude that the trial court’s admission of the evidence was an abuse of discretion. Bessemer, supra; Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944 (1978). On such a finding that improperly admitted evidence may have affected the verdict, the correct remedy is the grant of a new trial. Bessemer, supra; Mapp v. Dube, 330 Pa.Super. 284, 292, 479 A.2d 553, 555 (1984). See also Walasavage v. Marinetti, 334 Pa.Super. 396, 409-411, 483 A.2d 509, 516 (1984).

In contrast, in reviewing the trial court’s grant of a compulsory nonsuit, our inquiry is whether the plaintiff’s evidence was sufficient to present a question for the jury on which a verdict for the plaintiff could have been based. Commonwealth Trust Co. v. Carnegie-lllinois Steel Co., 353 Pa. 150, 44 A.2d 594 (1945). Our review is based on the evidence of record at the time the nonsuit was entered. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). In reviewing that evidence, we must give the plaintiff the benefit of every fact and reasonable inference arising from the evidence, resolve all conflicts in the testimony in plaintiffs favor and affirm the entry of the nonsuit only where that review leads ineluctably to the conclusion that the defendant is not liable. Woelfel v. Murphy Ford Co., 337 Pa.Super. 433, 487 A.2d 23 (1985); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984).

Having reviewed the record and arguments of the parties in accordance with these standards, we conclude that in this case the trial court did abuse its discretion in admitting evidence of suicide and possible murder because of the low probative value coupled with the highly prejudicial character of such evidence. We, therefore, reverse the trial court's refusal of a new trial. Moreover, we also reverse the trial court’s entry of a nonsuit on appellant’s claim for the value of the destroyed inventory. On retrial, the question of the appellant’s insurable interest should be submitted to the jury with appropriate instructions in accordance with this opinion.

I. Factual Background.

This case arose from a fire that occurred on November 21, 1982. The fire totally destroyed a retail hardware store located in Westfield, Pennsylvania. Appellant-insured, Seals, Inc. (“Seals”) owned the Westfield store building. George Plank, deceased, was at all time pertinent to this matter the President and sole shareholder of Seals. Seals was the franchisor of the business conducted at the store. The franchisees, Russell and Eileen Outman, owned the store inventory. They paid their rental and franchise fees to Seals primarily out of the proceeds of the sale of the inventory. (R. 23a). The Outmans had purchased the inventory out of the proceeds of a loan from Citizens and Northern Bank of Wellsboro, Pennsylvania (the “Bank”), which was evidenced by a promissory note. Both Russell and Eileen Outman signed their names to the Note as obligors. Following their names on the Note appear the signature of George Plank and the hand-printed name of Seals. Both appear on additional obligor signature lines.

Seals insured both the store building and the inventory therein against fire loss with appellee-insurer, The Tioga County Grange Mutual Fire Insurance Co., a/k/a Tioga Mutual Insurance Company (“Tioga”). Tioga declined coverage of Seals’ claim under the policy primarily because it contended that the fire was arson and George Plank was the arsonist. Tioga also contended that in any event no payment was due as to the destroyed inventory because Seals had no insurable interest therein.

On September 29, 1983, Seals instituted an action against Tioga in the Tioga Court of Common Pleas. Seals sought payment of the proceeds of the fire policy. A jury trial commenced on January 22, 1985 and ended with a verdict for Tioga on January 25, 1985. On the second day of trial, the trial court entered a compulsory nonsuit against Seals as to its claim for the value of the destroyed inventory, finding as a matter of law that Seals had no insurable interest therein. In accordance with Rule 227.1(c), Seals filed a post-trial motion seeking removal of the nonsuit within ten days after its entry. Pa.R.C.P. No. 227.1(c).

During the trial, Tioga supported its arson defense by introducing evidence of the fact that approximately ten days after the fire, George Plank committed suicide. The trial court allowed the evidence over the objection of Seals’ counsel. Tioga also sought to introduce evidence that immediately prior to his own death, Plank had shot and killed his girl friend, Ms. Mann. Seals’ counsel’s objection to this evidence was overruled. Faced with the trial court’s ruling, Seals’ counsel agreed that in lieu of Tioga’s submitting testimony as to the murder theory, the following stipulation would be read to the jury:

Detective Daniel O’Brien of the office of the Sheriff of Chemung County, New York is here in Court and is prepared to testify. He would testify that he conducted an investigation concerning the death of Martha Mann and George Plank, Jr., which deaths occurred December 1, 1982. He will testify that as a result of his investigation, he came to the following conclusions. (1) Miss Mann died as a result of a gunshot wound from a 30/30 rifle, and later, the same day, George Plank committed suicide by the use of the same 30/30 rifle.

(R. 88a). Counsel for Seals specifically preserved his exception to the admission of any testimony about Plank’s suicide or the murder theory despite the stipulation. (R. 87a).

On February 1,1985, Seals filed a Motion for a New Trial raising the issues set forth above. On October 23,1985, the trial court denied Seals’ motion and this timely appeal followed.

We shall consider the three issues Seals raises seriatim.

II. Evidentiary Issues.

Arson by an insured under a policy of fire insurance is an affirmative defense to the insurer’s obligations under the policy. As such, the burden is on the insurer to prove by a fair preponderance of the evidence that the fire was caused by arson. Sperrazza v. Cambridge Mutual Fire Insur. Co., 313 Pa.Super. 60, 459 A.2d 409 (1983); Greenberg v. Aetna Insurance Company, 427 Pa. 494, 235 A.2d 582 (1962). In this case, Tioga sought to sustain this burden by offering evidence from which it hoped that the jury would infer that Plank had killed himself and Ms. Mann because he was aware that he was going to be prosecuted for the burning of the Westfield store. Tioga sought to lead the jury to conclude that Plank’s suicide resulted from fear and guilty conscience. Further, Tioga wanted the jury to infer that Plank had killed Ms. Mann because his alibi for the night of the fire was that he was with Ms. Mann at his home in New York. Tioga hoped that the jury would believe that Plank was lying about his whereabouts that night and since he feared Ms. Mann would not support his alibi, he killed her. Thus, Tioga sought to prove arson by this and other circumstantial evidence.

At the outset, we should note that it is perfectly proper for circumstantial evidence to support a jury’s finding of arson by an insured. The District Court for the Eastern District of Pennsylvania has correctly described the evidence to be considered by a jury in such cases:

[I]n a civil matter to determine whether a reasonable inference exists that an insured is responsible for the fire which damaged the insured property, a jury should consider the combination of evidence of: (1) an incendiary fire; (2) a motive by the insured to destroy the property and (3) circumstantial evidence connecting the insured to the fire.

Mele v. All-Star Insurance Company, 453 F.Supp. 1338, 1341 (E.D.Pa.1978).

Obviously, Tioga sought to introduce the evidence of suicide and murder as circumstantial evidence connecting Plank to the fire. To the contrary, Seals argues that the probative value of this circumstantial evidence in connecting Plank to the fire is very low and is far outweighed by its prejudicial nature. We agree.

Evidence is relevant only when it tends to establish facts in issue or in some degree advance the inquiry. Whistler Sportswear v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). However, even evidence that is relevant must be excluded when it would confuse, mislead or prejudice the jury. To be prejudicial, evidence must have an “undue tendency to suggest decision on an improper basis.” Id., 289 Pa.Superior Ct. at 243, 433 A.2d at 47.

The evidence of Plank’s suicide is only relevant to the arson defense if in fact Plank killed himself because he had set the fire. Our examination of the record in this case leads us to conclude that Tioga failed to lay an adequate foundation by way of expert or other testimony as to the reasons for Plank’s suicide. Tioga submitted evidence that Plank was “nervous” when discussing the fire. It also showed that Plank had discussed the fire with some investigators who were investigating the fire and that they had asked Plank about his whereabouts the night of the fire and told him they thought the fire might have been arson. This alone does not at all demonstrate that Plank took his life because he feared prosecution for arson.

For a jury to infer that Plank had set the fire merely because over a week later he committed suicide, they would have to engage in precisely that pure “speculation” which this court has previously forbidden. Sperrazza, supra. The evidence must support a reasonable and legitimate inference of arson by the insured. The inference must not rest on speculation but rather on logical deduction from proven facts. Id., 313 Pa.Superior Ct. at 62, 459 A.2d at 410.

We find unpersuasive Tioga’s citation to criminal cases in which evidence of attempted suicide by an accused has been admitted to show guilty conscience and, therefore, guilt. See Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71 (1941); Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953). In both Giacobbe and Homeyer, the connection between the guilt of the defendant and the attempted suicide was clear.

In Giacobbe, the defendant was convicted of murdering her husband. She attempted suicide immediately after she was interrogated by the police for the first time six years after the murder. In reviewing the circumstantial evidence of her guilt, the court referred to the suicide attempts as “... her suicidal attempts six years later when discovery occurred and prosecution was imminent.” 341 Pa. at 191-93, 19 A.2d at 73-74. Similarly, in Homeyer, the suicide attempt by the defendant occurred after he had been arrested and while he was being transported by detectives to Pennsylvania for prosecution. 373 Pa. at 155, 94 A.2d at 745.

In contrast, in this case Plank was never even interrogated by the police concerning his involvement with the fire and there was no evidence that he had any inkling that he was under suspicion for arson.

Even assuming that the evidence of Plank’s suicide was at all probative of his guilt, we deem its admission to have been prejudicial. To commit suicide is in the minds of many a reprehensible, even immoral and sinful act. At minimum, it is the violent act of a severely troubled person. To this jury, evidence of such violence and mental instability, or even immorality, might have been enough to support in the jurors’ minds an inference of arson. Since they may have decided on this clearly improper basis, a new trial without the suicide evidence is required. Whistler, supra; Bessemer, supra.

We reach the same conclusion with regard to the admission of evidence suggesting that Plank killed Ms. Mann. The probative value of this evidence to establish a connection between Plank and the fire is even lower and more attenuated than that of the suicide evidence. Tioga cites us to no precedent to support the admissibility of evidence that asks a jury to speculate that a murder and, therefore, an arson occurred, and we have found none. In fact, Tioga merely argues that we should affirm the admission of the stipulation regarding Ms. Mann’s death because it did not specifically say that Plank killed her and, thus, did not prejudice Seals by telling the jury that Plank was a murderer. In so arguing, Tioga has placed itself in an indefensible position.

If, on the one hand, we evaluate the admissibility of the stipulation without reference to the obvious inference of murder the jury may have drawn therefrom, as Tioga would apparently have us do, then the stipulation sets before the jury only two facts: first, that Plank committed suicide and second, that Ms. Mann died earlier the same day from a gunshot from the same rifle. We have already stated that the suicide evidence should be excluded. And, if we exclude consideration of an inference of murder, the mere evidence that Ms. Mann died on the same day and by the same weapon as Plank is totally irrelevant to Tioga’s arson defense. It is thus inadmissible.

If, on the other hand, we evaluate the admissibility of the stipulation with regard to the inference a jury might draw therefrom, as indeed we must, the result is the same. The evidence of Ms. Mann’s death is equally inadmissible because the inferences of murder and arson from the manner of her death are purely speculative and the evidence is also prejudicial.

Tioga laid no foundation for the evidence of Ms. Mann’s death outside of the evidence summarized above regarding the foundation supposedly laid for the suicide evidence. This, coupled with the fact that Plank did contend he was with Ms. Mann in New York the night of the fire, is Tioga’s total basis for arguing that the jury could reasonably conclude that Plank had killed Ms. Mann because he was afraid she would refuse to support his alibi and, therefore, that Plank must have set the fire. The circuitous and speculative nature of this argument is obvious. First, Tioga asks that the jury be permitted to speculate that Plank indeed killed Ms. Mann. Then, Tioga asks that the jury be asked to further speculate as to the reason for the alleged murder and conclude that Plank set the fire. The foundation of a jury’s verdict cannot rest on layer upon layer of speculation. The manner of Ms. Mann’s death is not relevant to the arson issue and must be excluded on retrial of this action.

III. Insurable Interest.

Because we decide that a new trial must be had, we must now consider whether at that trial, the issue of Seals’ insurable interest should be submitted to the jury. We decide that it should.

An insured must demonstrate an insurable interest in property destroyed by fire before it can recover for the loss under a fire insurance policy. Christ Gospel Temple v. Liberty Mutual Insurance Co., 273 Pa.Super. 302, 308, 417 A.2d 660, 663, cert. denied, 449 U.S. 955, 101 S.Ct. 362, 66 L.Ed.2d 220 (1979). The question of whether an insured had an insurable interest in the property is clearly one of fact for the jury to decide. Bessemer, supra; Campbell v. Royal Indemnity Co. of New York, 256 Pa.Super. 312, 315, 389 A.2d 1139, 1141 (1978).

Seals attempted to demonstrate its insurable interest in the inventory of the Westfield store in two ways. First, it offered evidence to show that the rent and franchise fees the owners of the inventory paid to Seals were funded by the proceeds of inventory sales. Second, it offered evidence to show that Seals was a co-obligor with the inventory owners on a Note for $60,000, that repayment of the Note was primarily the obligation of the inventory owners, that such repayment was funded through the proceeds of inventory sales and that if the owners defaulted, Seals would be responsible for the payments as guarantor.

Tioga counters by arguing that under the law of Pennsylvania, an insurable interest must consist in either legal or equitable title to the property. Seals admittedly has neither. Further, Tioga disputes Seals’ status as a co-obligor or guarantor on the Note and thus contends that Seals’ alleged potential obligation to the Bank in the event of a default by the Gutmans does not exist.

We disagree with Tioga’s definition of the legal standard applicable to a finding of an insurable interest under Pennsylvania law. Although there is admittedly not a wealth of Pennsylvania precedent on this issue in the context of fire insurance policies, the leading Pennsylvania Supreme Court case on the issue and those following it make the resolution of this question clear.

In Van Cure v. Hartford Fire Insurance Co., 435 Pa. 163, 253 A.2d 663 (1969), a plurality of the court outlined the two competing definitions of insurable interest. The first, called the “legally enforceable interest theory”, would require an insured to prove that it had an interest in the destroyed property sufficiently solid as to be enforceable in court. In other words, actual legal or equitable title or an interest very close thereto, like a lien on the property, had to be shown. Id., 435 Pa. at 166, 253 A.2d at 664. The other theory was described by the Van Cure court as follows:

The second theory which enjoys greater support from text writers, is termed the ‘factual expectation’ theory. It states that ‘anyone who has an expectation of economic benefit from the preservation of property or an expectation of loss from its destruction, regardless of his relation to the property, has an insurable interest.’ This is a broad approach which covers not only all legal interests but other interests as well. It is more closely allied to the concept of indemnity for often a man with no legally enforceable interest may suffer more from the destruction of property than a man who holds title.

Id., 435 Pa. at 167, 253 A.2d at 665 (footnotes omitted).

Tioga correctly points out that the Van Cure opinion itself is not only a mere plurality and, therefore, not binding precedent, but that in Van Cure the actual holding was that the insured in that case did not have an insurable interest under any theory. We must, however, add that in Van Cure, although Justice Roberts dissented from the majority holding, his dissenting opinion expressly states that he too found the factual expectation theory to be the preferable standard. Id., 435 Pa. at 173, 253 A.2d at 668 (Roberts, J., dissenting). Thus, at least four of the Six members of the Van Cure court approved the factual expectation theory. Pennsylvania and federal cases decided after Van Cure have also been decided on the apparent assumption that the factual expectation theory is the correct measure of an insurable interest under Pennsylvania law. See, e.g., Kellner v. Aetna Insurance Co., 605 F.Supp. 331 (M.D.Pa.1984); Caputo v. Blackstone Mutual Insurance Co., 323 F.Supp. 1252 (W.D.Pa.1971); Luchan-sky v. The Farmers Fire Insurance Co., 357 Pa.Super. 136, 515 A.2d 598 (1986).

Therefore, we conclude that we must apply the factual expectation theory in assessing whether a compulsory nonsuit should have been entered in this case. Applying this theory, Seals clearly offered evidence that might lead a jury reasonably to conclude that it had a reasonable expectation of benefit from the preservation of the inventory or, at minimum, that it might suffer pecuniary loss if the inventory were to be destroyed. The rent and franchise fees the Outmans paid to Seals came from the proceeds of inventory sales and were calculated as a percentage thereof. (R. 46a, 49a). Obviously, a jury could reasonably conclude that Seals stood to lose those payments if their source was destroyed.

Moreover, Seals offered evidence of Seals’ co-obligation with the Outmans on the Note. Once again, Seals submitted testimony to show that the parties to the actual loan transaction understood that Seals was a co-obligor on the Note. The proceeds of the Note were used by the Outmans to purchase the inventory and the proceeds of the sale thereof funded repayment of the loan. (R. 16a-19a, 44a-45a). If Seals is a co-obligor on the Note or the obligation underlying the Note, it stood to lose if the Outmans defaulted.

Tioga contends that since the face of the Note does not reflect that Plank signed it in a representative capacity on behalf of Seals, i.e. as an authorized agent of the corporation, Seals is not obligated on the Note. In other words, Tioga contends that Plank’s signature of his own name and printing of the name of Seals on obligor signature lines on the Note does not suffice to bind Seals as a co-obligor. This argument ignores several points pertinent to whether Seals’ involvement in this loan transaction contributes to its insurable interest in the inventory.

First, there has been a clear suggestion in at least two Pennsylvania cases that the mere printing of a corporation’s name on an instrument may suffice as the “signature” of the corporation and, therefore, render the corporation liable on the instrument. See Pollin v. Mindy Mfg. Co., Inc., 211 Pa.Super. 87, 236 A.2d 542 (1967) (dicta) (allocatur denied); Jacoby Transport Systems, Inc. v. Continental Bank, 227 Pa.Super. 440, 419 A.2d 1227 (1980). This suggestion has been based on the language of Section 3401(b) of the Pennsylvania Uniform Commercial Code (the “Code”), which states that “[a] signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature.” 13 Pa.Cons.Stat.Ann. § 3401(b) (1982). Section 3401(a) states that only a person who has signed an instrument shall be liable thereon. Id. § 3401(a). Both sections must, of course, be read in conjunction with the general definitional provisions of the Code, which define “signed” to include “any symbol executed or adopted by a party with present intention to authenticate a writing.” Id. § 1-201(39).

In this case, there was no evidence to suggest either that Plank lacked authority to bind Seals to the Note by affixing its “signature” thereon or that any party to the loan transaction understood that Seals was not to be liable on the Note. The testimony suggests that both Plank personally and Seals were to be liable and there is nothing on the face of the Note that contradicts this conclusion.

Furthermore, Tioga ignores the fact that the Comment to Section 3401(a) of the Code, relating to who is liable on an instrument, makes clear that the Code’s restriction of persons liable to those who sign does not prevent liability from arising outside of the instrument itself, based on the obligation underlying the Note, or for “breach of any agreement to sign, or in tort for misrepresentation, or even on an oral guaranty of payment where the statute of frauds is satisfied.” Id. § 3401(a) Comment. Thus, for purposes of determining whether Seals could suffer pecuniary loss from the destruction of the inventory by becoming obligated to repay the Bank, Seals’ obligation on the Note itself is not the sole inquiry. And the testimony adduced by Seals at trial raised at least a material factual question as to the intentions of the parties to this loan transaction.

Given the foregoing, we are of the opinion that Seals clearly presented sufficient evidence supporting the existence of an insurable interest in the inventory to warrant submission of the issue to the jury. At minimum Seals expected continued benefit from the preservation of the property in the form of fees and rents. Such an expectation of benefit from the destroyed property deriving from an expectation that proceeds from the property will be used to satisfy an obligation to the insured has previously been held sufficient to evidence an insurable interest. For example, in Aetna Insurance Co. v. King, 265 So.2d 716 (Fla.Dist.Ct.App.1972), the court held that the insured had an insurable interest in property owned by another where the owner had agreed to employ the proceeds from the lease of the property for the support of the insured. In addition, in one early case strikingly similar to this one, the court held that where a firm of merchants provided inventory to a dealer and depended on his sale of those goods to fund payment for the inventory, the lending firm had an insurable interest in the inventory. A. Roos & Co. v. Merchants’ Mutual Insurance Co., 27 La.Ann. 409 (1875). In a much more recent case also involving similar facts, a Florida appellate court held that the insured had an insurable interest in the insured building where the insured had personally guaranteed a Small Business Administration loan to the corporate owner of the insured building. Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla.Dist.Ct.App.1974). The court so held despite the fact that the insured did not have a lien on the insured building to secure its guaranty agreement.

These precedents make it clear that where the factual expectation theory of insurable interest is to be applied and the insured produces evidence such as that produced by Seals, a material question of fact for the jury to resolve has been raised. The entry of the nonsuit was error.

Reversed and remanded for a new trial to be conducted in accordance with this opinion. Jurisdiction is relinquished.

      . Even if we found the murder theory evidence to be in any measure probative of arson, we would be compelled to decide that the evidence is prejudicial and, therefore, inadmissible on that ground. The inherently prejudicial nature of evidence of other crimes committed by a person accused of a crime has been repeatedly recognized by our' courts and the admission of such evidence is consequently severely limited. See Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975). In this case, any minimal probative valué the subject evidence might have is clearly outweighed by its prejudicial nature.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Zeller v. Wunder, Appellant.

      Affidavit of defense — Practice, C. P. — Contract—Sale by sample — Fraud.
    In an action to recover for goods sold and delivered, defendant filed an affidavit in which he averred that the amount of goods ordered was $120 instead of $320, as claimed; that the goods actually bought were orally ordered by sample, that the plaintiff’s agent fraudulently induced the plaintiff to sign a paper saying that it was. mere promise to receive the goods when shipped, that the paper was in fact a written order for more goods than orally ordered, that the goods sent were not according to sample, that a large quantity had never been ordered, and that the goods had been returned to the plaintiffs. Held, that the affidavit of defense was sufficient to prevent judgment.

      Pleading — Statement of claim — Sale of goods — Insufficiency of statement — Affidavit of defense — Practice, C. P.

    Where a written contract for the purchase of goods provides that payment should be made in certain installments, if notes were given within ten days from date of shipment, the seller cannot maintain a suit for the goods brought before the first installment becomes due, unless he avers in his statement some breach of the contract that would make the purchase price of goods presently payable. If the purchaser did not give the notes, that fact is essential and must be pleaded. If no breach is averred, the statement is defective, and the defendant need not file an affidavit of defense. The insufficiency of the statement may be objected to in the appellate court, although no objection was made to it in the court below.
    When the consideration of the defendant’s contract is executory, or his performance is to depend on some act to be done or forborne by the plaintiff, or some other event, the plaintiff must aver the fulfillment of such condition precedent whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or any other person, or must show some excuse for the nonperformance.
    Where the conditions of a contract for the purchase of goods show that the seller is to furnish to the purchaser a particular article free of charge, the seller in a suit for the purchase money must aver that the article was given or tendered, or that there was a good excuse for nonperformance.
    Argued Nov. 14, 1907.
    Appeal, No. 50, Oct. T., 1907, by defendant, from order of C. P. Berks Co., Dec. T., 1906, No. 57, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Nicholas Zeller, S. G. Duley and Okie Zeller, trading as Rhode Island Mfg. Co., v. W. L. Wunder.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the statement of claim and the affidavits of defense are set forth in the opinion of the Superior Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      W. K. Stevens, of Stevens & Stevens, with him George D. Humbert, for appellant.
    — The contract shown is an executory contract for a sale of goods by sample or description, and if not of the kind ordered or according to sample, the vendee had a right to refuse to accept upon giving notice to the vendor. The question as to whether the goods came up to description or sample was one of fact for the jury: Fogel v. Brubaker, 122 Pa. 7; Simpson v. Karr, 22 Pa. Superior Ct. 8; Wilson v. Belles, 22 Pa. Superior Ct. 477; Beirne v. Dord, 5 N. Y. 95.
    In the contract shown an action cannot be maintained upon the book account for goods had and received, but should be for breach of contract, and the measure, of damages is not the purchase price, but the difference between the price agreed upon and the market value of the goods on the day appointed for delivery: Blair v. Ford China Company, 26 Pa. Superior Ct. 374; Jones v. Jennings Bros. & Co., 168 Pa. 493; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536.
    February 28, 1908:
    Even if the contract shown were an executed contract under which the defendant was liable upon a book account for goods had and received, the consideration being payable in installments, recovery could not be had for the entire consideration until due: Buck v. Wilson, 113 Pa. 423; Napa Valley Wine Co. v. Daubner, 65 N. W. Repr. 143.

      Benj. F. Dettra, for appellees.
   Opinion by

Beaver, J.,

If we assume that the plaintiffs’ statement of claim in this case is sufficient, as we are possibly warranted in doing in view of the fact that the appellant has not demurred or excepted to the sufficiency thereof, we are of opinion that the affidavits of defense, as filed by the defendant, are sufficient to prevent the entry of judgment for want of a sufficient affidavit of defense.

There is a distinct allegation that the goods ordered by the defendant from the plaintiffs amounted to $120 instead of $320, as claimed; that the goods were ordered by sample and that those sent were not according to the sample and were entirely different from the order placed by the defendant, and that the said goods were returned to the plaintiffs. In his supplemental affidavit, the defendant alleges that the order was a verbal order and that the agreement reached was also verbal, and further states: “While this conversation was taking place, or immediately thereafter, and while a.number of sample sheets and other papers were lying about, the said representative asked the defendant to sign his name to what afterwards turned out to be an agreement, which paper was so folded that the defendant could see only the extreme lower end. At the time that he requested the said defendant to sign said paper, the said representative stated to the defendant, 'Sign your name to this; it is merely a promise that you will receive the goods when we ship them to you.’ Several weeks thereafter the said defendant received a consignment of jewelry from the said Rhode Island Manufacturing Co. and, upon examination of the same, he found that the said consignment included a large number of articles of jewelry, samples of which had never been shown him and which he had never ordered. Among the same were large numbers of certain lines of jewelry concerning which nothing had ever been said by the representative aforesaid.”

If the sale was by sample, as alleged by the defendant, and the goods shipped were not according to sample, he was not bound to receive them and, if this be true, he was warranted in returning them to the plaintiffs. If the facts alleged by the defendant as to the misrepresentations of the agent of the plaintiffs in regard to the signing of the order, the amount of goods contained therein and the price to be paid therefor, are established by competent evidence, the transaction would amount to such a fraud as to avoid the contract.

Whether' the evidence will be competent or sufficient in quantity and quality to support the allegation of fraud we need not now determine. These are questions to be passed upon at the trial.

It is perhaps unnecessary for the purposes of this case that anything more should be said in regard to_ it, but, in the view of the opinion writer, the statement is so manifestly insufficient that it should not be allowed to pass, without some comment thereon. The plaintiffs, in their statement, claimed to recover from the defendant the sum of $320, with interest, for goods sold and delivered. The sale is based upon an alleged contract, dated August 30, 1906, attached to the statement, in which the terms of payment are explicitly set forth as follows: “Terms of payment: Six per cent, discount for cash, or one-fourth in 4 months, one-fourth in 7 months, one-fourth in 10 months, one-fourth in 12 months, without interest, if acceptances are given within ten days from date of shipment.” The plaintiffs further set forth in their statement: “The said defendant has failed to comply with the terms of payment, as set forth in said order, and refuses so to do, and has defaulted therein and, therefore, the plaintiffs bring this suit to recover the sum of three hundred and twenty dollars.” Suit was brought on November 23, 1906, within the time fixed for the first payment, as specified in the order. It is clear, therefore, that the defendant had not defaulted in any of the payments provided for. The plaintiffs were not entitled to recover for any portion of the goods sold, until the end of four months, unless some breach of the contract was made by the defendant, which made the purchase price of the goods presently payable, but no breach is alleged nor are facts stated from which a legal inference can be drawn which would entitle the plaintiffs to recover. We can imagine, taking the statement and the affidavits of defense together, that the defendant did not give the acceptances provided for in the contract, but, if that be a fact, it should have been so stated. Imagination plays no part in legal pleading, and there is nothing but the imagination upon which we can predicate a breach of the contract in this regard. One of the fundamental principles of pleading is that “The breach of the contract, being essential to the cause of action, must in all cases be stated in the declaration:” 1 Chi tty’s Pleading, 364; and, at page 379, it is stated: “If the goods were to be paid for by a bill of exchange or promissory note, and the defendant has refused to give it, the declaration should be special; but after the expiration of the credit, or time during which the instrument was to be current, the common count will be sufficient.” Our practice act, of course, disposes of the distinction between common counts and what we regard as special under our old rules of pleading, but I have never yet heard that a recovery can be had upon a contract, .without the statement of the breach upon which a recovery is sought. For this reason, the statement, as it seems to me, would have been clearly demurrable. Inasmuch as “A judgment for want of a sufficient affidavit of defense is in effect a judgment on demurrer, and, like all such judgments, must be self-sustaining on the face of the record, and hence the fact that the sufficiency of the statement of claim may not have been objected to below is not a reason why it should not be regarded in the Supreme Court, ” Fritz v. Hathaway, 135 Pa. 274, I would hold that no affidavit of defense was necessary in this case.

Another elementary and equally fundamental principle of pleading is that “When the consideration of the defendant’s contract was executed or past at the time of making the contract, and his performance was not to depend on any subsequent event, or other circumstance essential to the action, the declaration should proceed -at once from the statement of the contract to the breach, without any intermediate averments, as in a count on an indebitatus assumpsit, etc. But when the consideration of the defendant’s contract was executory, or his performance was to depend on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or any other person, or must show some excuse for the nonperformance:” 1 Chitty’s Pleading, 351.

In this case one of the conditions of the contract, as plainly appears therein, was that the plaintiffs were to furnish a revolving show case free. There is no averment in the statement that this was done or tendered. There is no expression of willingness to perform, and no attempt at showing an excuse for nonperformance.

The plaintiffs practically admit in their argument here these defects in their statement. They meet that in regard to the failure to aver the particular breach by reason of which the deferred payments become presently payable by saying: “The affidavits of defense filed show that the defendant returned the goods and declined to perform his contract, and certainly do not allege that the defendant gave the plaintiffs the acceptance at 4, 7, 10 and 12 months, as stipulated. Therefore he cannot claim that he was entitled to any time for payment.” As to the show case, it is alleged: “The goods were shipped by express, as appears by entry on copy of book account, and the show case was to come by freight. Of course, after defendant had repudiated his contract, it would have been foolish for the plaintiffs to send to defendant a show case which was given by them in the nature of a premium and intended to display the wares manufactured by them, and no longer in defendant’s possession.” These may be excuses for claiming that the payments under the contract are presently payable and that the plaintiffs were not bound to ship the show case, as stipulated for in the contract, when the case comes on for trial, but how can such statements, in an argument to this court, supply fatal defects in a statement of claim, or how can the plaintiffs claim that the failure of the defendant to set up in his affidavit of defense the discharge of an obligation, on his part to be performed, make self-sustaining such a statement which omits to aver the breach upon which recovery is sought and without which it is not possible, or excuse the failure of the plaintiffs to set forth the performance of the provisions of the contract on their part to be performed, or to allege facts which would excuse them from performance which are equally necessary to make the statement self-sustaining? If our practice act of 1887 is to be made the scapegoat for such serious and vital sins of omission, showing an utter disregard of the most elementary principles of pleading, as are here shown, then I am free to confess, having signed the act which made it law, that it never should have been signed.

Independently, however, of the question of the sufficiency of the statement, we regard the affidavits of defense as sufficient to prevent the entry of judgment.

The decree of the court below is reversed and a procedendo awarded.


author: Head, J.,

text:
    Commonwealth, Appellant, v. Corson.

      Boroughs — Building laws — Illegal ordinance — Summary conviction.

    In the absence of legislative authority, a borough has no power to enact an ordinance applicable to the entire borough and undertaking to specify a uniform standard of construction for every building to which it applies, thereafter to be erected in the borough, whether the building is large or small or cheap or costly.
    An ordinance regulating the construction of buildings within a borough cannot be upheld where it is impossible to determine from the ordinance, with anything like legal certainty, just what kind of buildings are intended to be prohibited.
    Where an ordinance of a borough forbids the construction of buildings without submitting plans thereof to a borough inspector, a summary conviction for violating the terms of the ordinance cannot be sustained against mere workmen employed by the owner or contractor.
    Where a borough ordinance forbids certain classes of buildings to be erected before plans for them have been submitted to the borough inspector, a summary conviction for violation of the ordinance cannot be sustained where the record of the magistrate does not set forth the kind of houses which the defendant was building.
    In a summary conviction the record of the magistrate must show affirmatively that the defendant was convicted of having done the precise thing forbidden by the law or ordinance alleged to have been violated.
    Argued Dec. 4, 1907.
    Appeal, No. 98, Oct. T., 1907, by plaintiff, from order of C. P. Montgomery Co., June T., 1906, No. 105, reversing judgment of justice of the peace in case of Commonwealth v. J. Jay Corson et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Certiorari to judgment of a justice of the peace.
    The facts are stated in the opinion of the Superior Court.
    Weand, J., filed the following opinion:
    Upon information of Howard A. Simpson, “Building Inspector of the Burgess and Town Council of the Borough of Norristown,” eleven separate warrants were issued against the different persons therein named, charging them with a violation of a borough ordinance entitled “An ordinance to regulate the construction of buildings within the Borough of Norristown, and to provide for inspection thereof.
    The magistrate notwithstanding the separate informations and warrants united the eleven cases in one, and tried the case as if it were on suit for a joint trespass or joint promise.
    The information charged the defendants with “constructing two dwelling houses, etc., without first submitting to the Building Inspector, etc., the plans therefor and receiving his approval and permit for the erection thereof, contrary to the provisions of the ordinance,” etc. “Said J. Jay Corson and William L. Gotwals being the owners of the ground and buildings as aforesaid, etc., said Joseph F. Evans being the contractor for the masonry of said buildings, employed by the said Corson and Gotwals” and the said other defendants “being workmen employed upon and engaged in the construction of said buildings.”
    After hearing the magistrate adjudged each defendant guilty of “having constructed certain building walls for the purpose of erecting houses, etc., without having obtained permit,” etc. and contrary to the ordinance, etc., and imposed a fine of $50.00 and costs against each defendant. In the bill of costs eleven warrants were charged for.
    The case now comes before us on certiorari and seventeen exceptions have been filed involving the jurisdiction of the magistrate, the validity of the ordinance, and the regularity of the proceedings.
    The sixth exception alleges that “the Justice had no power to proceed in the name of the Commonwealth under the ordinance.”
    We have already decided in Com. v. Weachter, 22 Montgomery, 198, that “in a prosecution for the violation of an ordinance imposing a penalty or fine for the use of the borough, the suit should be in the name of the borough, ” citing Sell v. Com., 1 Montg. County Law Repr. 177; Com. v. Clark (No. 1); 14 Lanc. Law Rev. 41; Speakman v. Speakman, 1 Pa. Dist. Rep. 119; Milton Borough v. Hoagland, 3 Pa. C. C. Rep. 283.
    The commonwealth has no interest in these proceedings. By the Act of June 4, 1897, P. L. 121, “All fines and penalties for the violation of borough ordinances shall be paid over to the borough treasurer.”
    The fifteenth exception alleges that “ although separate war^ rants are shown to have been issued for each of the defendants, yet the case was heard and tried against all of the defendants at one time, instead of being tried against each individual defendant separately.”
    The penalty imposed by the ordinance is “a fine not exceeding one hundred dollars.” The Act of April 5, 1849, P. L. 410, sec. 7, provides “In all cases of the breach of any by-laws of any city, borough, town or corporate body within this commonwealth, subjecting the offender to a penalty or fines therefor, suits for the recovery thereof maybe maintained before any Justice of the Peace or alderman in like manner as suits for the recovery of debts under the sum of one hundred dollars may now be maintained before them,” etc.
    The action, therefore, is in the nature of a civil proceeding and as' each defendant, if liable at all, was only liable for his own act, the joinder was improper. If they can thus be jointly sued for a debt it must be because they are jointly liable, but the judgment is individual.
    Under the ordinance each person who violates its provisions is individually liable because he commits a separate offense and the act of one has no connection with the act of another.
    The tenth exception alleges that the justice had no jurisdiction to convict the eight workmen as no permit was required from them. Section 2 of the ordinance provides that a building inspector shall be elected “to whom builders, contractors or owners must submit plans and specifications for construction, alterations and repairs as aforesaid, together with written application for a building permit,” etc.
    • Section 29 provides “Any person or persons, .firms or corporations, whether owner, builder, contractor, architect or workman, who shall make any alteration, construction, etc., without permit” shall be liable to a penalty. It is only the builders, contractors and owners who must submit plans, etc., to'whom the permit is to be granted. To hold the workmen liable would be to require the laborer who digs the cellar, the carpenter who drives a nail or the man who lays a brick to obtain a permit under penalty. Only one permit is required and this after the approval of the plans and specifications. The facts in evidence show that Corson & Gotwals were owners and Joseph F. Evans, the contractor, and therefore these eight workmen cannot be considered as constructing the buildings.
    We sustain the sixth, tenth and fifteenth exceptions and reverse the proceedings before the magistrate. The legality of the ordinance is also questioned, but it is not advisable in this proceeding to discuss that question inasmuch as it could not be reviewed. Having reversed the proceedings the defendants could not appeal; and if we are correct in our other findings, the judgment would not be reversed on appeal by the borough, or the point decided by the higher court.
    February 28, 1908:
    And now, April 12, 1907, the proceedings before the magistrate are reversed.

      Error assigned was the judgment of the court.

      Irvin P. Knvpe, for appellant.

      Henry Freedley, with him H. M. Brovmbach, for appellees.
   Opinion by

Head, J.,

. On 'November 9, 1905, the municipal authorities of the borough of Norristown enacted an ordinance containing twenty-nine lengthy sections, covering twelve closely printed pages of the appellant's paper-book. Its title is: “An ordinance to regulate the construction of buildings within the borough of Norristown and to provide for inspection thereof.” .We quote the sections or parts thereof to which we shall later refer:

“Section .1. That hereafter municipal approval of the plans and specifications and a duly issued permit for construction is required before any person, firm or corporation shall or may begin .to erect any building (except sheds), outbuildings, stables and additions altogether on private property and none over, one story high nor intended to hold public assemblages nor mechanics and Work people at regular employment. Similar approval' and permit shall be required for repairs and alterations that change substantially the plan of a building or decrease its strength; and what is hereinafter provided for original construction shall be deemed to extend to and to be required in cases of such alterations and repairs.”

“Section.6. All buildings hereafter erected shall have all outside or division walls constructed of stone, brick, concrete, iron or other hard, non-combustible material properly bonded and solidly put together, constructed to a line, plumb and straight; provided that this ordinance shall not refer to nor prevent the erection of two-story frame buildings back of and attached to any tenement or dwelling-house of brick or other non-combustible material, nor to water-closets in private yards nor to work-shops, carriage houses and stables fronting upon alleys and not over one story high.”

“Section 29. Any person or persons, firms or corporations, whether owner; builder, contractor, architect or workman, who shall make any alteration, construction or removal of any building or structures whatsoever, without permit therefor first obtained, except as herein specified, or in violation of any of the provisions of this ordinance, or who shall have become the owner thereof after the same has been so done, and who shall omit, neglect, or refuse to remove the same, if dangerous or in violation of this ordinance, or to make the same safe and secure and in all respects conform to the requirements of this ordinance within thirty days after notice to that effect, shall upon summary conviction thereof before the Burgess or a Justice of the Peace be fined for such offense in an amount not exceeding one hundred dollars.”

On April 6, 1906, one Howard A. Simpson, alleging that he was a building inspector of the borough of Norristown, duly elected under the provisions of the foregoing ordinance, appeared before a magistrate and filed an information charging that eleven persons, naming them, “were constructing two dwelling houses on the northeastern side of Sandy street in said borough without first submitting to the building inspector .... the plans therefor and receiving his approval and permit for the erection thereof, contrary to the provisions of the ordinance,” etc. His information further set out that two of the persons named, Corson and Gotwals, were the owners of the ground and the buildings being erected thereon; that Evans was the contractor for' the masonry of said buildings, and that the remaining eight persons charged were workmen employed on the buildings. Eleven warrants issued and all of the defendants were brought before the magistrate where a hearing was had, at the conclusion of which, the magistrate determined that all of the defendants “be convicted and adjudged guilty and are hereby convicted of having constructed certain building walls for the purpose of erecting houses on the northeast side of Sandy street, etc., .... without having obtained a permit from the building inspector and contrary to the ordinance,” etc. Whereupon each one of the defendants was fined in sums aggregating upwards of $200 and costs.

A writ of certiorari was then sued out of the court of common pleas, after allowance by the said court, and exceptions to the legality and regularity of said judgment having been duly filed, the court, after argument, reversed and set aside the said judgment and proceedings. Thereupon the borough council authorized its solicitor to take this appeal.

Inasmuch as the borough was no party to the proceedings begun before the magistrate in the name of the commonwealth, it has not been made clearly to appear that it had a right to appeal, but as this question was not pressed at the argument we pass it by without further comment.

What was the purpose of the ordinance.in question? If it was to prevent the erection of wooden buildings entirely, or to authorize a municipal officer, called an inspector, to determine at his own pleasure whether or not he would authorize and issue a permit for such buildings or refuse to do so, it is to be further observed that this regulation applied to the entire borough. The ordinance, in most minute detail, undertakes to specify a uniform standard of construction for every building, to which it applied, thereafter to be erected in the borough. Whether the building was large or small, whether it was designed to be cheap or costly, seemingly made no difference. Was such an ordinance a reasonable exercise of any police power conferred upon the borough of Norristown? This borough was not incorporated under the general borough Act of April 3, 1851, P. L. 320, but acquired its municipal existence and powers under several acts of the legislature which have been recited in the briefs.

It is to be noted that this was not an attempt to prescribe and regulate the character of buildings, thereafter to be constructed, within certain defined limits- territorially, where the population was congested and where the space had been closely built up. In Klingler v. Bickel, 117 Pa. 326, the Supreme Court held that an ordinance, enacted by a borough .incorporated under the general act of 1851, was reasonable .because its operation was confined to a certain limited and defined area of the borough of the character last indicated. In the course of the opinion in that case Mr. Justice Paxson said: “If the ordinance had been general in its character and had prohibited the erection of frame buildings in every part of the borough,it might have been open to the objection of being unreasonable and therefore void. The only reason, as before stated, why such prohibition can be sustained at all, is the danger from fire to surrounding buildings. Where such reason does not exist because of the rural character of a portion of the borough, it might be oppressive and unreasonable to ¡apply such an ordinance.”

In Kneedler v. Borough of Norristown, 100 Pa. 368, it appears that as early as 1864 this same borough undertook to enact an ordinance making it unlawful “for any person or persons to put up, erect or build any frame or wooden buildings within the limits of the borough of Norristown, except bathhouses, porches, water-closets, and sheds, or hay houses for farm purposes on farms exceeding ten acres.” The Supreme Court there held that the borough had no authority under its charter to enact such an ordinance, Mr. Justice Green using the following language: “The charter of the borough of Norris-town contains no authority to the council to enact ordinances prohibiting the erection of wooden buildings. Nor is there anything in the grant of general powers conferred upon the borough from which such an authority can be necessarily inferred or to which it is indispensable. Lacking these requirements, the qualities necessary to create the power in question are not present.....In the present case, however, the ordi-.. nance in question is subject to another objection, which ap-. plies to all its parts, and that is, that it is unreasonable and oppressive.”

It has not been made to appear in the record before us that the borough of Norristown, at the time of the .passage of the ordinance now before us, had received from the legislature the power which the court determined it did not possess when it undertook to enact the ordinance of 1864. But apart from that, the objection that the ordinance then declared invalid was unreasonable and oppressive, seems to us to apply with equal force to the later ordinance.

Again, we think this ordinance is invalid because it is .insensible. Reading sections one and six together we believe it to be impossible to determine, with anything like legal certainty, just what land of buildings were intended to be prohibited. If protection from fire, to existing property, was the object of the ordinance, we learn from the first section that every kind of buildings, that could be classed as “sheds,” might still be put up at the pleasure of the citizen in any part of the borough' without regard to the ordinance. It is impossible to determine whether buildings not over one story high were intended to be embraced within the ordinance or excluded from its operations. Section six provides that all buildings hereafter erected shall have outside or divirion walls of stone, brick, etc., “provided that this ordinance shall not refer to nor prevent the erection of two-story frame buildings back of and attached to any tenement or dwelling house of brick nor to water-closets in private yards nor to workshops, carriage houses and stables fronting upon alleys and not over one story high.” From an examination of these two sections, a citizen of Norristown desiring to erect a building was to determine, at his peril, whether or not his proposed building was to be subject to all the oppressive restrictions contained in this remarkable ordi-' nance. In section two it is provided that the town council shall annually elect a building inspector “to whom builders, contractors or owners must submit plans and specifications for construction together with a written application for a building permit.”

If now we look to the record of the summary conviction we find that all of the defendants, eleven in number, were convicted under one proceeding, “of having constructed certain building walls for the purpose of erecting houses.” What kind of houses? Were they “two-story frame buildings back of and attached to any tenement or dwelling-house of brick”? If so, then under section six they were not forbidden by the ordinance. In a summary conviction the record of the magistrate must show affirmatively that the defendant was convicted of having done the precise thing forbidden by the law or ordinance alleged to have been violated. We do not think •in this respect this' record measures up to the requirement of the law. Eight of the defendants, as already stated, were workmen on the buildings or walls. They were in nowise responsible for the plans or specifications, or for the failure of the owner or contractor to file them with the building inspector and obtain his permit to proceed with the work. There is nothing in the ordinance that would enable them to protect themselves by securing a permit. To enact that every mechanic or laborer, before he could drive a nail in a building or remove a shovelful of earth from the excavation for its foundation, must first satisfy himself that the owners or contractors had complied with all the requirements of this ordinance or else be punished with them for its violation, is surely to go beyond the reasonable limits of municipal legislative power lawfully and reasonably exercised. We are therefore constrained to hold that this ordinance, for the reasons that we have indicated, is unreasonable and the enactment of it was an invalid exercise of the power vested in the municipal authorities. Because of this, as well as for the reasons given by the learned court below, we feel obliged to conclude that the court was right in reversing and setting aside the judgment entered by the-magistrate.

The appeal is therefore dismissed at the costs of the appellant.


text:
    Fairlamb, Appellant v. Smedley Construction Company.

      Bankruptcy — Liens—Preferences—Act of June 4, 1901, sec. 28, P. L. 431.
    A suit brought under the provisions of the Act of June 4,1901, sec. 28, P. L. 431, by a subcontractor or material man against a contractor with summons to the owner as garnishee, is a “legal proceeding” within the meaning of the national bankrupt act of 1898; and if the suit is begun within four months prior to the filing of a petition in bankruptcy against the contractor, no lien accrues in favor of the plaintiff in the suit by reason of the summons to the owner as garnishee.
    Argued Dec. 9, 1907.
    Appeal, No. 47, Oct. T., 1907, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 457, making absolute rule to dissolve attachment in case of R. Crosby Fairlamb et al., trading as P. H. Fairlamb Company v. Smedley Construction Company, defendant, Swarthmore College, garnishee.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to dissolve attachment.
    From the record it appeared that on October 12, 1906, a petition in bankruptcy was filed against the Smedley Construction Company, and on the same day the company was adjudicated a bankrupt. On November 27, 1906, plaintiffs brought an action against the Smedley Construction Company under the Act of June 4,1901, sec. 28, P. L. 431, and summoned Swarthmore College as garnishee. From the record of this suit it appeared that the construction company had a contract with the college to erect a certain building in Delaware county, and that the college was indebted to the construction company on account of work on the building. The trustee of the bankrupt intervened by leave of court, and took a rule to dissolve plaintiff’s attachment. This rule was made absolute, and plaintiffs thereupon appealed.

      February 28, 1908:

      Error assigned was the order of the court.

      M. Hampton Todd, for appellant. —
    This lien is not void by reason of the bankrupt law of 1898: Crane Co. v. Smythe, 11 Am. B. R. 747; First Nat. Bank of Bridgeport v. Perris Irrigation Dist., 107 Cal. 55 (40 Pac. Repr. 45); Newport Wharf, etc., Co. v. Drew, 125 Cal. 585 (58 Pac. Repr. 187).

      E. Clinton Rhoads, with him Henry Wiener, Jr., for appellee. —
    The adjudication in bankruptcy vests in the trustee in bankruptcy title to the fund in controversy: Dombach v. Smedley Construction Co., 24 Lancaster Law Rev. 201; In re Roeber, 121 Fed. Repr. 449; In re Lesser, 108 Fed. Repr. 201; In re Johnson, 108 Fed. Repr. 373; In re Pekin Plow Co., 112 Fed. Repr. 308; State Bank of Chicago v. Cox, 143 Fed. Repr. 91; In re Lukens, 138 Fed. Repr. 188; Chesapeake Shoe Co. v. Seldner, 122 Fed. Repr. 593; In re Haynes, 123 Fed. Repr. 1001; Hymes Buggy & Implement Co., 130 Fed. Repr. 977; In re Winfield Mfg. Co., 140 Fed. Repr. 185.
   Opinion by

Head, J.,

The national bankrupt act of 1898 provides, inter alia, “that all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other hen, shall be deémed wholly discharged and released from the same.” A fortiori, if the legal proceedings, which were intended to result in the acquisition of a lien, were not begun until after an adjudication that the owner of the attached property was a bankrupt, no lien would be created thereby.

It is to be observed that it is only liens “obtained through legal proceedings” begun after the adjudication, or within four months prior to it, that are avoided. That is where the lien begins with the proceeding, flows from it, is created by it and has had no previous or separate existence apart from it. But where the lien has come into existence, more than four months prior to the filing of the petition in bankruptcy, by the creative power of a statute, as incident to a judgment, levy or otherwise, and the legal proceeding, begun within four months, or even after the adjudication, is intended but to preserve or enforce such lien, the language of the act of congress quoted has no application.

Thus, it is conceded, that if a building be begun more than four months prior to the filing of such a petition against the owner or contractor, the mechanics and material men within the purview of our statute acquire liens, not by virtue of any legal proceeding begun by them, but by the force and power of the statute. These hens, all alike, are fastened by the law upon the building and curtilage as of the date when the first work was done on the ground. And the law that created them nurtures and protects them for a specified time, without any act of co-operation on the part of the claimant: Keller v. Denmead, 68 Pa. 449. If he desires to preserve his lien beyond the period named in the statute, then he must take the steps directed. But in taking these or others to enforce payment of the debt secured by his lien, he may proceed, notwithstanding an intervening bankruptcy, because the act of congress puts nothing in his way.

So if a judgment be lawfully entered, a lien is thereby created against all of the real estate of the debtor in the county; and if that lien attached, more than four months before a petition be filed, it can be enforced later and the act of congress presents no obstacle. But such a judgment does not create a lien on the goods or chattels, or rights and credits of the debtor in the county, or on his real estate in a neighboring county. To secure a lien upon these the plaintiff must resort to the legal process the law has placed at his command; to his writs of fi. fa., attachment execution or testatum fi. fa. But all of these liens are “obtained through legal proceedings,” and if so obtained within four months of the filing of a petition in bankruptcy, they will be stricken down by the paramount law: Mencke v. Rosenberg, 202 Pa. 131.

In the present case, the defendant was adjudicated a bankrupt on October 12, 1906. More than a month later the plaintiff began this action of assumpsit against it, and having filed the affidavit required by section 28 of our Act of June 4, 1901, P. L. 431, relating to liens of mechanics, etc., summoned Swarthmore College, as a garnishee. As a result of this proceeding the appellant claims to have attached, acquired a lien upon, and thus secured, to the exclusion of the trustee in bankruptcy, all moneys thereafter coming due and owing by the garnishee on account of the building contract under which defendant was operating, at the time of its bankruptcy.

To save the lien, he claims, from the operation of the bankruptcy act, the learned counsel for appellant argues that it was not “obtained through legal proceedings,” but that, as in the case of the ordinary mechanic’s lien, it was created by the statute and came into existence as soon as the work was done or material furnished by the plaintiffs, and that the filing of the affidavit and service of the summons on the garnishee were but the steps, directed by the act, to preserve and enforce the lien that had its inception, ex vi statuti, long before.

The theory is ingenious, but to our minds unsound. To adopt such a construction would create difficulties, insurmountable we fear, in attempting to execute this section in harmony with the remaining sections of the act and the general scope of the legislative intent. But without stopping to advert to them and without undertaking to draw any conclusions from reasoning ab inconvenienti, we think the language of the section itself and every reason, that can be drawn, by analogy, from the consideration of like legislation, lead to a different construction.

The suit provided for may be brought by anyone who has furnished labor or material to a building, no matter how many degrees beyond a subcontractor he may stand removed from the owner. He may bring it at any time when the action would not be barred by the general statute of limitations. He does not proceed in rem. The section nowhere uses the word “lien.” The action is personal, but has engrafted upon it an attachment process to reach choses in action of the defendant in the hands of a third person. This goes out in limine, and in this respect it resembles a foreign attachment. In other respects, the proceeding is akin to an attachment execution. The language used is as follows: “In any suit brought to recover for labor, the plaintiff, if he files of record at the time of beginning the suit an affidavit setting forth the facts, may summon also therein the owner or any other party indebted to the defendant for labor done or materials furnished, to such structure: the effect of service of which writ, upon such third party, shall be to attach the moneys then or thereafter becoming due such defendant.”

In this language, we can see no foundation broad enough for the superstructure built upon it by way of argument. The act declares that the attachment is an “effect,” and that the cause from which it springs is the service of the writ. Why seek a distant and obscure source for that, the origin of which is so pointedly stated? The act nowhere refers to or contemplates any right of the plaintiff to a lien upon a fund other than or prior to that which results from and is obtained by the act of serving the writ upon the party owing the money. Why a lien, incident to the attachment therein provided for, should be carried back to some time anterior to the service of the writ, and thus made to differ radically from the hens secured by other writs of attachment or execution we are unable to see. We are necessarily led to the conclusion, that the attachment secured by the appellant was “obtained through legal proceedings”; that, by virtue of the paramount force of the bankruptcy act of congress, such attachment would be ineffectual as against the trustee of the bankrupt; and that the learned court below was right in dissolving it at the instance of the latter.

We are asked by the learned counsel for appellee to declare the twenty-eighth section of the act of 1901 unconstitutional and void as special legislation, and because no warning of the legislation therein contained is to be found in the title. On the first ground stated, it has been so declared in a careful opinion by Judge Sulzberger in Tennessee Producers’ Marble Co. v. Grant, 14 Pa. Dist. Rep. 453. We see no occasion to dispose of that question now. It is not necessary to sustain the judgment now before us. We therefore decline to consider it and rest our conclusion on the ground, that allowing the section to stand, it furnishes no foundation for this appeal.

The assignments of error are dismissed, and the order or decree dissolving the attachment is affirmed. The costs of this appeal to be paid by the appellant.


author: Henderson, J.,

text:
    Andrus v. Shippen Township, Appellant.

      Road law — Road master — Compensation for use of team — Supervisors— Public officers.

    A road master appointed under the provisions of the Act of April 12, 1905, P. L. 142, is not entitled to compensation for the use of his team in repairing roads in his district, where it does not appear that the supervisors had engaged the use of the team, or in any way authorized its employment, or that they even knew that it was in use.

      Practice, C. P. — Case stated — Facts stated.

    The judgment of the court on a case stated must be on facts agreed upon, and it will not go outside of the case stated by assuming that. which is not agreed to by the litigants.
    Argued Feb. 25, 1908.
    Appeal, No. 10, March T., 1908, by defendant, from judgment of.C. P. Cameron Co., July T., 1907, No. 2, on case stated in suit of Jacob Andrus v. Shippen Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Case stated to determine liability for use of team in repairing roads. Before Hall, P. J.
    The case stated was in part as follows:
    Jacob Andrus, the plaintiff above named, is one of the road masters employed by the road supervisors of the said township of Shippen, defendant, under the provisions of an act. entitled: ‘An Act providing for the election and appointment of road, supervisors in the several townships, &c.,” approved April 12,-1905.
    The said Jacob Andrus worked his team of horses upon the public roads of said township, in the district for which he was employed as road master, on April 30, May 1 and 2, 1907; that the work done by his said team was necessary to keep the said roads in repair, and that the sum of $4.00 per day is a fair price for the work done by his said team; that the supervisors of the said township of Shippen have refused to pay him for the said work of his team on the ground that a road master is not entitled to compensation for the services of his team on the roads of the district in which he is employed as such.
    April 20, 1908:
    The court entered judgment for plaintiff.

      Error assigned was in entering judgment for plaintiff on the case stated.

      J. P. McNamey, of Johnson & McNarney, for appellant.—
    The case stated contains no agreement that there was a hiring of plaintiff’s team, and the court erred in assuming such hiring: Frailey v. American Legion of Honor, 132 Pa. 578; Northampton County v. Easton Passenger Ry. Co., 148 Pa. 282; Chester City v. Traction Co., 4 Pa. Superior Ct. 575.
    There having been no hiring by the supervisors of the team of the plaintiff, the fact that the township may have received the benefit of the work of the plaintiff’s team does not make the township liable: Appeal of Harrison Twp., 20 Pa. C. C. Rep. 54; Anderson v. Hamilton Twp., 25 Pa. 75.
    Our position is that sec. 66 of the Act of March 31, 1860, P. L. 382, prohibits such employment and compensation therefor, and that such employment and compensation is against public policy: Com. v. Witman, 217 Pa. 411.
    A road master is an officer of the township: Com. v. Sutherland, 3 S. & R. 145; Riddle v. Bedford County, 7 S. & R. 386.
    An employment which is defined by law and not by contract is an office: Shelby v. Alcorn, 36 Miss. 273; Houseman v. Com., 100 Pa. 222.
    No argument nor printed brief for appellee.
   Opinion by

Henderson, J.,

The plaintiff was a roadmaster appointed under the provisions of the Act of April 12, 1905, P. L. 142. He used his team for three days in the spring of 1907 in repairing roads in his district and upon the refusal of the supervisors to allow him compensation for the use of his team an amicable action was entered into to determine his right. It is not set forth in the case stated that the supervisors engaged the use of his team or in any way authorized its employment, nor that they even knew it was in use. The judgment of the court must be based upon facts agreed upon and it will not go outside of the case stated by assuming that which is not agreed to by the litigants: Northampton County v. Railway Co., 148 Pa. 282; Chester City v. Traction Co., 4 Pa. Superior Ct. 575. The only foundation for the plaintiff’s claim must be therefore an assumpsit on a quantum meruit. But the township cannot be made liable for such a claim. The roadmaster had no authority to engage teams or to employ laborers. That duty is expressly cast upon the supervisors by the statute. The duty of the roadmaster is defined in the third section to be “to work on the roads himself and see that the work done on the roads in his district or division is in accordance with the plans and specifications furnished him by the Road Supervisors, to oversee the men employed while at work on the roads, and keep the time of each man working under him and report under oath to the Road Supervisors as often as they require.” He is merely the agent of the supervisors to give attention to the prosecution of the road-work in his district and to see that the laborers render faithful service and that the plans of the supervisors are carried out. The voluntary act of a person in providing a team to work on the road without request does not give a right of action against the township; not even where the work was beneficial to the township and necessary to the proper reparation of the road. They who seek to recover for such services must show the authority of the supervisors. The practice which would permit volunteers to expend labor or money in the construction or repair of roads without the direction of the supervisors might lead to great abuse and could not be tolerated: Anderson v. Hamilton Twp., 25 Pa. 75. It follows that as there was no employment of the plaintiff’s team by the supervisors there was no contract, and without a contract the township is not liable.

It was contended further at the argument that the plaintiff’s action could not be maintained even if a contract existed because he is a municipal officer and is forbidden by the sixty-sixth section of the Act of March 31,1860, P. L. 382, from furnishing any supplies or materials to the township of which he is an officer. It is not necessary to consider this aspect of the case for the plaintiff’s action must fail for the reasons above stated.

The judgment is reversed and judgment is now entered for the defendant.


author: Morrison, J.,

text:
    Green v. Green, Appellant.

      Trespass — Unlawful cutting of timber — Boundary—Evidence—Question of fact — Question for jury.

    In an action of trespass to recover damages for the unlawful cutting of timber, where the issue turns upon one of the boundary lines of the plaintiff and defendant, and defendant’s contention that a line designated by him had been established and agreed to between himself and plaintiff’s predecessor in title, and such contention is met by evidence that no such line existed until after the death of the former owner, and that it was marked on the ground wrongfully by the defendant without the consent of the plaintiff, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.
    Argued Feb. 25, 1908.
    Appeal, No. 1, March T., 1908, by defendant, from judgment of C. P. Clinton Co., Jan. T., 1903, No. 85, on verdict for plaintiff in case of Mary J. Green v. Theodore Green.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the unlawful cutting of timber. Before Mayer, P. J.
    The facts are stated in the opinion of the Superior Court.

      April 20, 1908:
    Verdict and judgment for plaintiff for $430, being double damages. Defendant appealed.

      Error assigned was in submitting the question of plaintiff’s title to the jury.

      C. S. McCormick, for appellant,
    cited: McKelvey v. Truby, 4 W. & S. 323; M’Coy v. Hutchinson, 8 W. & S. 66; Ormsby v. Ihmsen, 34 Pa. 462; Gourley v. Kinley, 66 Pa. 270; Dodge’s App., 106 Pa. 216; Brown v. M’Kinney, 9 Watts, 565; Crawford v. Neff, 3 Grant’s Cases, 175; Barnhart v. Pettit, 22 Pa. 135.

      Sidney D. Furst, for appellee,
    cited: McCall v. Neely, 3 Watts, 69; Hole v. Rittenhouse, 25 Pa. 491; Coxe v. Deringer, 82 Pa. 236; Keizer v. Beemer, 13 Atl. Repr. 909; Penn. v. Preston, 2 Rawle, 14.
   Opinion by

Morrison, J.,

The plaintiff, Mary J. Green, brought this action of trespass against the defendant, Theodore E. Green, to recover damages for the unlawful cutting of timber trees standing and growing upon land claimed by the plaintiff. There was a verdict in favor of the plaintiff for the value of the timber and judgment ■ was entered thereon by the learned court below for double the amount of the verdict as provided by the act of March 27, 1824, 8 Smith’s Laws, 282.

No question is raised as to the correctness of the verdict and judgment, if the timber was cut upon the lands of the plaintiff. The evidence warranted the jury in finding that Marcus Green, deceased husband of the plaintiff, went into possession of a portion of warrant No. 4,025, situated partly in Lycoming and partly in Clinton counties, in 1861, and that he held open, adverse and continued possession of the same till the time of his death in 1898. It is conceded that this piece of land was well marked as to its lines on all sides, except its southern boundary, and the latter line was in dispute. The lot was supposed to contain about fifty or sixty acres, bounded on the north by David Glover; east by the county line between Clinton and Lycoming counties and the highway known as the Coudersport Turnpike running along said county line; on the south by David Glover and west by lands of Frederick heirs and others. The plaintiff acquired whatever title was vested in her husband by having the land appraised and' set apart to her as her exemption under the provisions of the Act of assembly of April 14, 1851, P. L. 612, and its supplements. The appraisement bounded and described the. land in accordance with the draft or plot, a copy of which is inserted on page 28, as exhibiting the plaintiff’s claim. / .-

It is beyond''question that by .this appraisement and the confirmation thereof by the court on January 9,1899, the plaintiff acquired the .title that was vested in her husband, Marcus Green, at' the time of his decease.- An examination of the draft or plot 'shows that the plaintiff claimed that the southern boundary of hef land was the line of David Glover, except a small piece of about two acres in the southwest corner of the lot which is conceded to have belonged to Theodore E. Green, the defendant. '. By reference' to the draft an alleged division line will Be found marked from east to west across the lot, about one-fourth of its length above the south line. This line, the defendant' contended at the trial, was the true south line of the plaintiff’s land, and that the timber trees cut by him all grew south of that line and, therefore, the plaintiff was not entitled to1-recover. On the other hand, the plaintiff claims that no such line was ever marked upon the ground during the lifetime of fter husband nor thereafter with her consent. On the part of the defendant, there was evidence tending to support that line aá having been established and agreed to by the defendant and Marcus Green. But in reply to that contention there was considerable evidence to the effect that no such line existed till long after the death of Marcus Green, and that it was marked ónjthe ground wrongfully by the defendant without the consfent of the plaintiff or her predecessor in title or anyone representing her.

There was no serious contention at the trial that Marcus Green and the plaintiff after him, did not have a good title to about fifty acres of the land described in the draft, but the contention was that it did not extend far enough south to include the land on which the timber 'trees were cut by the defendant. Under the evidence the true location of the line in question was a matter of fact to be found by the jury. Am examination of the charge of the learned judge shows that he so considered it and the evidence-was all referred to the jury and they were instructed to find for the plaintiff, or for the defendant, in accordance with their conclusion as to the location of said line. The verdict indicates the conclusion of the jury that the plaintiff’s land extended-south to the David Glover line, except the two acres in the southeast corner of the tract which is conceded to belong to the defendant. This finding by the jury is well supported by the evidence and it entitled the plaintiff to a verdict for the value of the timber in question.

The defendant’s counsel made a motion for a new trial and the disposition of the case cannot be better illustrated than by quoting the opinion of the learned judge, the late C. A. Mayer, in disposing of that motion: “The controversy in this case is between two adjoining landowners and was a question of location. The plaintiff, Mary J. Green, who was the wife of Marcus Green, deceased, claimed to hold the land under what is known as the exemption laws. Both parties claimed to own a portion of the John Nicholson warrant and survey No. 4,025. The plaintiff claiming to own the land north of the part claimed by the defendant. A dispute arose between the plaintiff and the defendant as to the division line between their respective pieces of land. The location of this line was a question of fact to be determined by the jury from the testimony of the witnesses. The court submitted to the jury the evidence as to the location of this division line and left it for their determination. The jury rendered a verdict in favor .of the plaintiff. We are not disposed to disturb this verdict as the whole controversy was a question of fact to be determined by the jury. New trial refused. By the court: C. A. Mayer, P. J.”

In our opinion, the case was well tried and we discover no merit in the assignments of error. We desire, however, to note that in the charge of the court, as furnished to us, the learned judge is made to say if the timber was cut north of this division line, the plaintiff could not recover because it must be timber cut south of the line in order to entitle the plaintiff to recover. This is evidently a mistake of the printer or the reporter, . jWe do not believe the learned judge ever used the language thus put in his mouth. In fact, the plaintiff could only recover for timber cut north of the true south line of her land, and, therefore,- the instruction upon this point ought to have been just the opposite of the language credited to- the learned judge. However, there is no exception taken to this apparent -error, and'it does not appear to have been noticed by the counsel, and we only refer to it for the purpose of showing that, we have not overlooked it.

The assignments of error are all dismissed and the judgment is affirmed.


text:
    Updegraff, Appellant, v. Snyder.

      Appeals — Failure to print portions of record — Ejectment—Quashing appeal.

    Failure to print prascipe, writ and declaration on an appeal from judgment in ejectment, is ground for quashing the appeal. '

      Land law — Unseated land — Seated land — Tax sale — Boundary.' .

    In an ejectment where the plaintiff relies on a treasurer’s sale of unseated land, and the evidence shows that the land in the possession' of the defendant had long been in the actual possession and occupancy of defendant and predecessors in title, and was in fact seated, a presumption of law arises, in the absence of evidence, that there were no unpaid taxes on the unseated list which would support a treasurer’s sale of any part of such lands in the possession of the defendant.
    Where, in ejectment, the plaintiff’s declaration, praecipe and writ ' describe the land claimed as bounded on the east by a particular warrant and survey, the plaintiff cannot recover any land east of that line.
    Argued Feb. 25, 1908.
    Appeal, No. 3, March T., 1908, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1906, No. 199, on verdict for defendants, in case of Asher D. Upd.egraff v. F. P. Snyder and Edward Holt.
    Before Rice,- P.(. j., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    April 20, 1908:
    Affirmed.
    Ejectment for land in Lewis township. Before Hart, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were various instructions.

      H. W. Whitehead, for appellant,
    cited: M’Coy v. Michew, 7 W. & S. 386; Russell v. Werntz, 24 Pa. 337; Foust v. Ross, 1 W. & S. 501; Dikeman v. Parrish, 6 Pa. 210; Troutman v. May, 33 Pa. 455; Wheeler v. Winn, 53 Pa. 122; Hull v. Campbell, 56 Pa. 154.

      G. B. M. Metzger, with him W. C. Gilmore, for appellees,
    cited: Kennedy v. Daily, 6 Watts, 269; Biddle v. Noble, 68 Pa. 279; Norris v. R. R. Co., 218 Pa. 88; Philadelphia v. Miller, 49 Pa. 440; Carbon Run Improvement Co. v. Rockafeller, 25 Pa. 49; Manhattan Coal Co. v. Green, 73 Pa. 310.
   Opinion by

Morrison, J.,

In this action of ejectment there was a verdict and judgment thereon in favor of the defendants, and the plaintiff appealed.

The learned counsel for plaintiff has not seen fit to print his praecipe, writ and declaration, and if we were to enforce the rules strictly, he could not justly complain if his appeal were quashed. But having carefully examined the case we áre enabled, with the help of the-appellee’s paper-book, to understand, as we think, the merits of the controversy.

The plaintiff’s declaration, as found in the appellee’s book, clearly states that the suit is brought to recover land, in the possession of the defendants, lying west of the west line of the John Bausman warrant No. 332. ■ The case was tried on.the theory that the defendants were in the wrongful possession of the Joseph A. Bostley warrant, dated May 2, 1876. 'this warrant called for vacant land, adjoining lands of David Reynolds and John Bausman, No. 332, on the east. The latter warrant was located on the ground and it was dated May 17, 1785. The survey was made and a return of the same to the land office on May 6, 1795, and a patent was granted for the land so surveyed, from the commonwealth on April 3, 1873, to Henry Godcharles. No patent was issued for the Joseph A. Bostley warrant and survey till April 24, 1905.

As the case was tried the plaintiff finally relied on a treasurer’s sale, in 1894, of the Bostley warrant on the unseated list, for unpaid taxes. The assessment was for ninety-nine acres, in the name of Joseph A. Bostley, in Lewis township, and the land was identified in no other manner. The theory on which the plaintiff undertook to recover was that the Bostley warrant interfered with the Bausman land by overlapping it twenty or thirty rods along its western boundary, and the defendants not showing that the Bausman land had been assessed and the taxes paid thereon, the assessment and sale of the Junior Bostley warrant carried title to so much of the Bausman land as was so overlapped by the Bostley warrant. The plaintiff proved the defendants in possession of so much of the Bausman land as was overlapped by the Bostley survey and patent. The difficulties in the way of the plaintiff’s theory were several: (a) The Bausman warrant, survey and patent were the elder, and the west line of the land covered thereby was located on the' ground before the Bostley warrant was even thought of, and the latter called for the west line of the Bausman as its east boundary, (b) The evidence shows that the Bausman land in the possession of the defendants was seated, it having long been in the actual possession and occupancy of the defendants and their predecessors in title who resided thereon. Therefore a presumption of law arose, in the absence of evidence, that' there were no unpaid taxes, on the unseated list, which would support a treasurer’s sale of any part of such lands in the possession of the defendants. The assessment and sale relied on by the plaintiff, in the name of Joseph A. Bostley, without more, would not pass title to the Bausman land in the possession of the defendants. (To avoid confusion it should be noted that one of the predecessors in title of the defendants was Augustus Bostley, but he is not the Joseph A. Bostley to whom the warrant above mentioned was issued. He was an owner and possessor of a portion of the Bausman land.) (c) The plaintiff’s declaration and, as we feel justified in assuming, praecipe and writ, described the land he claimed as bounded on the east by the John Bausman warrant and survey. Therefore he could not recover any land east of that line, (d) The learned court below clearly instructed the jury to find, under conflicting evidence, where the line between the Bausman and the Bostley warrants was actually located, telling them that if the defendants were in possession of any land described in the declaration, west of the line between the said warrants, the plaintiff could recover; but if the defendants were not in possession of any such lands, the verdict must be for the defendants.

Under the pleadings and evidence we think the learned court correctly tried the case and adequately instructed the jury. Furthermore, in our opinion, the verdict is in accordance with the weight of the evidence.

The assignments pf error are all dismissed and the judgment is affirmed.