text:
    Lapcevic v. Lebanon Mutual Insurance Company, Appellant.

      Insurance — Fire insurance — Proofs of loss — Waiver—Total loss — Stock of merchandise.

    1. Formal proofs of loss are not necessary in the case of the total loss of a building insured, where the insurance company has been promptly notified of the loss and has inspected the premises; but this rule has no application to the total loss of a stock of merchandise.
    2. It would be dangerous to establish a rule in the latter case that if . the insured gave prompt notice that his entire stock of goods were burned, and the company tried to make a compromise with him which he rejected, that he would then be relieved from filing the proofs of loss required by his policy.
    3. A mere rejected offer to compromise an insurance loss is not sufficient evidence of a waiver of the proofs of loss called for in the policy.

      4. Where an insured employs an agent to negotiate for the settlement of a fire loss with the insurance companies, and such agent induces the adjusters of the companies to meet with him and the plaintiff, and an effort is made to compromise and settle, and the insured rejects the offer made by the adjusters, and nothing further occurs, the companies will not be deemed to have waived the proofs of loss stipulated for in the policies.
    Submitted April 30, 1909.
    Appeals, Nos. 189, 190 and 191, April T., 1909 by defendants, from judgment of C. P. Westmoreland Co., Aug., T., 1908, Nos. 948, 949 and 951, on verdict for plaintiff in case of Samuel Lapcevic v. Lebanon Mutual Insurance Company, Ohio German Fire Insurance Company and Concordia Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Doty, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were (1-3) instructions quoted in full in the opinion of the Superior Court.

      W. K. Jennings, D. C. Jennings and Gaither & Whitten, for appellants, cited:
    Hottner v. Fire Ins. Co., 31 Pa. Superior Ct. 461; Beatty v. Ins. Co., 66 Pa. 9; Gould v. Ins. Co., 134 Pa. 570; Dunn v. Ins. Co., 34 Pa. Superior Ct. 245.

      G. B. Shaw and John C. Silsley, for appellee, cited:
    Pa. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Roe v. Dwelling House Ins. Co., 149 Pa. 94; Weiss v. Fire Ins. Co., 148 Pa. 349; Gartsee v. Ins. Co., 30 Pa. Superior Ct. 602; Hower v. Fire Ins. Co., 9 Pa. Superior Ct. 153; McCormick v. Ins. Co., 163 Pa. 184.
    July 14, 1909:
   Opinion by

Morrison, J.,

There were five cases in favor of the same plaintiff tried together in the court below; one against the Globe Underwriters was disposed of by the court giving binding instructions for the defendant; another was against the Guardian Fire Insurance Company, but no appeal was taken, the company having become insolvent. Therefore, we have for consideration the appeals of the three insurance companies named in the caption. This opinion will be filed in No. 189, April Term, 1909, but it is intended to apply to No.’s 190 and 191 of the same term, in which formal orders only will be made.

The policies in the Lebanon Mutual and the Concordia Fire Insurance Companies were for $1,000 each on the stock of merchandise contained in the plaintiff’s store. The policy of the Ohio German Fire Insurance Company, the other appellant, covered its proportionate share of the insurance upon the building, merchandise and furniture, but as the loss was claimed to be total, each company, if liable at all, was liable for the full amount of its policy.

Fire occurred on February 5, 1908, by which the plaintiff’s property was destroyed. The plaintiff failed to serve his proofs of loss within the stipulated time of sixty days after the fire, but claimed that there was a waiver of the strict terms of the policy by the defendants. The cases were all tried together upon three defenses: (a) That proofs of loss were not filed within sixty days; (b) That the plaintiff was guilty of misrepresenting and false swearing concerning the insurance and the subject thereof, having made contradictory statements in his statement of claim and his proofs of loss; (c) That the property had been damaged by an explosion which preceded the fire.

The court instructed the jury that the proofs had not been filed in time and that their verdict therefore should be for the defendants, unless they found that there had been a waiver on the part of the defendants. The questions as to false statements and the explosion were also left to the jury who found verdicts for the plaintiff for the full amount of the policies.

The first assignment of error is that the court erred in refusing the defendant’s first point which point and answer are as follows: “1. Under all the evidence your verdict must be for the defendant. Answer: These propositions are refused in every case except the Globe Underwriters Agency and therein we affirm the proposition and direct that you render a verdict for the defendant.”

The second assignment complains that the court erred in affirming plaintiff's fourth point, to wit: “The testimony being that the only objection raised by the defendant company to the payment of the entire loss was a claim for reduction from the total loss by reason of damage caused by an explosion and since they resisted payment on this ground alone they cannot now set up as a defense the failure of the plaintiff to file formal proofs of loss within sixty days from the date of the fire. Answer: Affirmed.

“The third assignment: The court erred in using the following language in the charge: 'We think, however, that it is a plain question of fact 'for the jury that under those circumstances where there had been a total loss of the property as plaintiff alleges, and as is not denied, where there was an immediate notice, where the adjusters of the company appeared upon the ground and made a personal investigation and where by agreement the adjuster, who represented the company, and the plaintiff and his adjuster met and made an examination of the books and papers, it is for the jury to determine whether there was a waiver on the part of the company.' ''

We will briefly consider the second and third assignments first.

In affirming the fourth point the learned court positively instructed the jury that the defendants could not set up as a defense the failure of the plaintiff to file formal proofs of loss within sixty days after the date of the fire. But in the general charge, as raised in the third assignment, the learned court instructed the jury that it is a plain question of fact for the jury under the circumstances where there had been a total loss of the property as plaintiff alleges and is not denied, etc., .... it is for the jury to determine whether there was a waiver on the part of the company. Now it is not in the power of mortal man to determine which instruction the jury followed. The defendants have a right to contend that by the affirmance of plaintiff’s fourth point (second assignment) the court led the jury to disallow the defendant’s defense on account of the failure of the plaintiff to file formal proofs of loss within sixty days from the date of the fire. But there is further error in the court’s charge as raised by the third assignment and that is attaching importance to the fact that the rule is different where there has been a total loss of the insured property in a case like the one under consideration, where the property was largely a stock of merchandise in a store. The learned counsel for the appellee, to sustain this instruction, cites and relies on the following cases: Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568, but in that case the policy embraced a building alone and the Supreme Court said: “As the policy embraced a house alone, which was valued at $700; as the loss was total, and as of that loss the company undoubtedly had full notice, we think under the authority of the Lycoming Fire Ins. Co. v. Schollenberger, 44 Pa. 259, and the Farmers Mut. Ins. Co. v. Moyer, 10 W. N. C. 129, no further notice or proofs of loss were necessary, ” Roe v. Dwelling House Ins. Co., 149 Pa. 94, but that was insurance of a building that was totally destroyed by fire, Weiss v. American Fire Ins. Co., 148 Pa. 349, but we understand that to be insurance upon a building. Gartsee v. Citizens Ins. Co., 30 Pa. Superior Ct. 602, is another case cited by appellee, but that is a case of insurance upon a building that was totally destroyed by fire of which the company had notice. In short, all of the cases cited, as well as those we have found, holding that where the property insured is totally destroyed, and the company has prompt notice, and sends their adjuster to attempt to make a settlement and no further proofs are required, are cases of insurance of buildings, or a single chattel, and we are not aware that the rule applies to insurance of a stock of merchandise. We believe the decisions make a distinction of the character indicated by us, and there seems to be a reason for this. Where a building, or a single chattel, is insured and totally destroyed by fire, it is easy for the insurance company to procure evidence as to the character and value of the building or chattel, but in the case of a stock of merchandise in a store, it is very different. It would be dangerous to establish a rule in the latter case that if the insured gave prompt notice that his entire stock of goods were burned and the company tried to make .a compromise with him, which he rejected, that he would then be relieved from filing the proofs of loss required by his policy. Such a rule would open the door wide for fraud and trickery. Our case of McGinnis v. St. Paul Ins. Co., 38 Pa. Superior Ct. 390, is readily distinguishable from the present one. We there held that “Formal proofs of loss are not necessary in the case of a total loss of a building insured, Miere the insurance company has been promptly notified of the loss and has inspected the premises.” Citing Gartsee v. Citizens Ins. Co., 30 Pa. Superior Ct. 602. We feel compelled to sustain the second and third assignments.

But the more important question in this case is whether there was sufficient evidence to warrant the court in submitting the question of a waiver of the filing of proofs within sixty days to the jury at all. We are clearly of the opinion that there was nothing in the case to estop the defendants from raising this question. They set it up in their affidavit of defense and they insisted upon it at the trial. We have examined with care the evidence upon which the plaintiff contends that the adjusters of the defendants met and investigated the loss and took such action that the plaintiff was relieved from filing the proofs of loss within sixty days, but- we do not think the evidence was sufficient to carry that question to the jury. After the fire, the plaintiff employed one Hall, to try to get a settlement with the insurance companies and plaintiff, Hall and some adjusters met at Pittsburg and made an investigation of the loss, to some extent, and one of the adjusters, at least, offered to pay plaintiff seventy-five per cent of his alleged loss. But this proposition was flatly refused by the plaintiff and in all of the evidence we fail to find proof of a waiver of a strict compliance with the terms of the policies or sufficient evidence of such waiver to carry that question to the jury. It has been héld over and over again that a rejected offer to compromise is not sufficient evidence of a waiver of the proofs of loss called for in the policy.

In Beatty v. Lycoming Mutual Ins. Co., 66 Pa. 9, Sharswood, J., said: “Now to constitute a waiver there should be shown some official act or declaration of the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it. As is remarked by’the present Chief Justice in Diehl v. Adams County Ins. Co., 58 Pa. 443, 'This never occurs unless intended or where the act relied on ought in equity to estop the party from denying it.' Mere silence is not enough.” Upon this question see also Gould v. Ins. Co., 134 Pa. 570.

In Dunn v. Farmers Fire Ins. Co., 34 Pa. Superior Ct. 245, the facts are much like the present case. There the plaintiff and the adjuster of the insurance company met and endeavored to settle but failed to do so and there was a suit with verdict and judgment in favor of the plaintiff. In that case, like the present one, the learned com! instructed the jury that unless they found that the defendant had waived a strict compliance with the requirement of proof of loss, the plaintiff could not recover, but the court submitted that question to the jury and on appeal, we held that the evidence was insufficient and reversed the judgment. We could not affirm the present judgments without reversing that judgment and going in conflict with the decisions of the Supreme Court upon which it was based.

In the present case, where the plaintiff employed an agent to negotiate for a settlement with the companies and that agent induced the adjusters of the companies to meet with him and the plaintiff, and an effort was made to compromise and settle, and the plaintiff rejected the offer made by the adjusters, it is difficult for us to see how all that took place at that meeting, as disclosed by the evidence, or elsewhere, furnished any ground on which the plaintiff could stand and successfully maintain his suits without furnishing the proofs of loss within sixty days, as stipulated in his policies. We think the court ought to have given a binding instruction in favor of the defendants. The'first assignment of error is sustained.

Judgment reversed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Lapcevic v. Ohio Insurance Company, Appellant.
    July 14, 1909:
   Opinion by

Morrison, J.,

For the reasons given in the opinion this day filed at No. 189 of April Term, 1909, ante, p. 294, the assignments of error are sustained and the judgment is reversed.


text:
    Lapcevic v. Concordia Insurance Company, Appellant.
    July 14, 1909:
   Opinion by

Morrison, J.,

For the reasons given in the opinion this day filed at No. 189 of April Term, 1909, ante, p. 294, the assignments of error are sustained and the judgment is reversed.


text:
    Curry v. Morrison, Appellant.

      Contract — Illegal contract — Promissory note — Consideration—Surety— Judgment note.

    1. Where one of two partners in the business of conducting a licensed hotel, sells his interest to his copartner in whose name the license had been taken out, and takes a judgment note of his copartner with a surety in payment therefor, the surety cannot claim exemption of liability on the note because of an illegal combination between the partners in obtaining a license.

      Judgment — Revival—Scire facias to revive — Defense—Partners.
    2. On a scire facias to revive a judgment entered on a judgment note, a set-off cannot be set up which involves an inquiry into an alleged partnership between the parties to the note upon which the judgment was entered.
    3. The only defense in the trial of a scire facias on a judgment is a denial of the existence of the judgment, or proof of the subsequent satisfaction for the discharge thereof. Under no circumstances can the merits of the original judgment be inquired into.

      Argued May 3, 1909.
    Appeal, No. 30, April T., 1909, by defendant, from order of C. P. Jefferson Co., Aug. T., 1906, No. 775, discharging rule to open judgment in case of Gurnie Curry for use of C. A. Curry, Executor of Gurnie Curry, deceased, v. Blair Curry and G. A. Morrison, Executor of James McGee, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment. Before Reed, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order discharging rule to open judgment.

      A. J. Truitt, for appellant.
    The judgment having been entered on an illegal note, the consideration for which is in violation of our statutes and criminally inconsistent with public policy and sound morality and the integrity of our civil-institutions, the judgment should be opened: Com. v. Curren, 3 Pitts. 143; Wilson v. Com., 96 Pa. 56; Ham v. Smith, 87 Pa. 63; Bredin’s App., 92 Pa. 241; Given’s App., 121 Pa. 260; Wilson v. Buchanan, 170 Pa. 14; Nester v. Brewing Co., 161 Pa. 473; Whitmire v. Montgomery, 165 Pa. 253; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173.
    Blair and Gurnie Curry conducted their partnership in the hotel business in the -name of Blair Curry — Gurnie being a dormant partner therein. The $3,500 note on which judgment was entered was given in this business and was a partnership judgment. The court erred in refusing defendant’s offer to show payment by a set-off of that portion of this judgment assigned to him: Martin & Co. v. East End Oil Co., 10 Pa. Superior Ct. 582; Seitz & Co. v. Buffum & Co., 14 Pa. 69; Carey v. Bright, 58 Pa. 70; McDonald v. Simcox, 98 Pa. 619; Paxson v. Beans, 3 Phila. 433; Hocking v. Hamilton, 158 Pa. 107; Kenney v. Altvater, 77 Pa. 34; Blair v. Wood, 108 Pa. 278.

      W. W. Winslow, with him J. E. Calderwood, for appellee.
    If an act in violation of either statute or common law be already committed and a subsequent agreement entered into which, though founded thereupon, constituted no part of the original inducement or consideration, such an agreement is valid: Lestapies v. Ingraham, 5 Pa. 71; Allen v. Line, 11 Pa. Superior Ct. 517; Hipple v. Rice, 28 Pa. 406; Wright v. Pipe Line Co., 101 Pa. 204; Armstrong v. Toler, 24 U. S. 258.
    A set-off is inadmissible, unless followed by evidence that the plaintiff accepted and acknowledged it as a credit upon the judgment: Bishop v. Goodheart, 135 Pa. 374.
    Unsettled partnership accounts against the plaintiff are not admissible as a set-off: Jenkins v. Anderson, 11 Atl. Repr. 558.
    July 14, 1909:
   Opinion by

Morrison, J.,

In this record we find nineteen assignments of error and elaborate printed arguments for the respective parties. But a careful examination of the whole record only discloses to us two important questions, (a) Did the learned court below err in refusing to open the original judgment in favor of Gurnie Curry and against Blair Curry and James McGee? (b) Did the court err in refusing to permit the executor of James McGee, deceased, to set off one-fourth of another judgment against Blair Curry, James McGee, D. W. Michael, Max Klein and the Punxsutawney Brewing Company against the plaintiff’s scire facias to revive his judgment? The latter judgment being entered on a note which was not executed and delivered for about one year after Gurnie Curry obtained his note above mentioned. It appears that James McGee was the surety on a note of Wm. A. McGee for $2,500, held by the Punxsutawney National Bank, at the time of the sale of an hotel property at Anita, Penna., to Blair Curry. In the purchase of the hotel a note of $3,500, dated April 1,1904, was given to the same bank, signed by Blair Curry and indorsed by James McGee, D. W. Michael, Max Klein and the Punxsutawney Brewing Company, and the $2,500 note was taken up. The note of April 1, 1904, was renewed on August 1, 1904, signed by the same persons. Gurnie Curry did not sign either of these notes, and on August 20, 1904, he sold his interest in the hotel property to his brother Blair and left the business for the reason that the Currys had been informed by counsel that it would make trouble if the court found out that Gurnie was interested in a license granted in the name of Blair alone.

On December 12, 1904, judgment was entered on the $3,500 note and on March 27, 1905, that judgment, interest and costs, was satisfied of record. On April 1,1905, a note signed by Blair Curry and the same four sureties for $3,200 was given to the Punxsutawney National Bank. On August 4, 1905, judgment was entered on this note and a fi. fa. issued, and Blair Curry became a bankrupt and the four sureties had to pay said judgment, although the one-fourth for which James McGee’s estate was liable, he having died in May, 1905, was paid by his executor, he taking an assignment of the portion of the judgment he so paid. At the trial of the scire facias to revive the judgment of Gurnie Curry against James McGee, the executor undertook to set off against the scire facias the portion of the $3,200 judgment which he had paid as above stated. This, we think, sufficiently states the history of the case.

The learned court below, on the rule to open the Gurnie Curry judgment, found as a fact that the money which Gurnie had invested in the hotel purchase with his brother, with interest thereon, about equaled the amount of the $800 note upon which the Gurnie Curry judgment was entered. The court found from the facts, as a legal conclusion, that the consideration for said note was valid and legal and that no sufficient ground was shown for opening said judgment as against James McGee, the surety. Upon a careful consideration of the whole case, we all concur in this conclusion.

The note was voluntarily executed and delivered by Blair Curry and James McGee for a good and valid consideration, and if Gurnie and Blair Curry were engaged in an illegal transaction in regard to the ownership of the hotel and obtaining the license therefor in Blair’s name, this did not forfeit Gurnie’s money which he had invested in the hotel purchase. In entering judgment on his note and collecting the same, Gurnie Curry was not compelled to travel through, expose or rely on the illegal combination between himself and Blair in obtaining the license: Johnson v. Hulings, 103 Pa. 498.

The remaining question is, was there error in not permitting the executor of James McGee, deceased, to set off the share of the judgment against Blair Curry and his four sureties which said executor paid as above stated? We are not convinced of any error in this respect. That one judgment may be set off against another through the equitable powers of the court is not doubted: Thorp v. Wegefarth, 56 Pa. 82. But the present case was a scire facias to revive a personal judgment of Gurnie Curry against Blair Curry and James McGee, and the attempt was made to set off one-fourth of another judgment against Blair Curry and his four sureties which was not in existence till a year after the Gurnie Curry judgment was obtained. To allow the set-off involved an inquiry into the alleged partnership between Blair and Gurnie Curry. It would be a novel thing to try such a question on a scire facias to revive a judgment. In our opinion, the learned court did right in excluding the evidence offered for the purpose of laying ground for such set-off. Unless the defendant showed that no such judgment existed as the one sought to be revived or that it had been satisfied or discharged, the plaintiff was entitled to verdict and judgment.

“The only defense in the trial of a scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof:” Dowling v. McGregor, 91 Pa. 410; Campbell’s App., 118 Pa. 128. Under no circumstances can the merits of the original judgment be inquired into: Cardesa v. Humes et al., 5 S. & R. 65; Trader v. Lawrence, 182 Pa. 233.

“In a scire facias to revive a judgment, an offer to prove as a set-off an item of indebtedness of the plaintiff to the defendant, is inadmissible, unless followed by evidence that the plaintiff accepted and acknowledged the item as a credit upon the judgment in suit:” Syllabus of Bishop v. Goodhart, 135 Pa. 374.

We have already seen that the plaintiff in the judgment being revived had no connection whatever with the judgment, a portion of which was sought to be used as a set-off, unless such connection could be found in the alleged partnership between Blair and Gurnie Curry. We do not think this question could be properly tried and determined on a scire facias to revive a judgment. If the defendant’s judgment had been against Gurnie Curry, he would not have lost his equitable right to have it set off against the Gurnie Curry judgment after it was fully revived. It seems to us that the defendant’s difficulty was that he had no judgment against Gurnie Curry and he did not deny the existence of his judgment nor did he offer to prove that it was satisfied, reversed or discharged. We all think the case was correctly tried.

The assignments of error are all overruled and the order refusing to open the original judgment is affirmed, and the judgment on the scire facias is also affirmed, and the appeal is dismissed at the costs of the appellant.


text:
    Meyersdale Borough, Appellant, v. Deal.

      Equity — ■Findings of fact — Obstruction of alley — Evidence.
    On a bill in equity filed by a borough against an owner of a lot to enjoin the obstruction of an alleged public alley, a finding of fact by the court below based upon sufficient evidence that the alley had never been dedicated to the public, or opened, and was not a public alley, will not be reversed by the appellate court in the absence of manifest error.
    Argued May 5, 1909.
    Appeal, No. 210, April T., 1908, by plaintiff, from decree of C. P. Somerset Co., No. 11, Equity Docket, 1906, dismissing bill in equity in case of Meyersdale Borough v. C. E. Deal.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to restrain the obstruction of an alleged public alley. Before Kooser, P. J.
    The case turned on the question whether an alley known as “ Land Line Alley” was or was not a public alley.
    The court found as a fact in a lengthy opinion that the alley was not a public alley. The court dismissed the bill.

      Errors assigned were in overruling exceptions to various findings and in dismissing the bill.

      Geo. K. Warn and J. A. Berkey, for appellant.

      A.L.G. Hay, with him Valentine Hay, for appellee.
    July 14, 1909:
   Opinion by

Morrison, J.,

This was a bill in equity and a careful examination of the bill and answer, testimony, findings of fact, exceptions, discussion and conclusions of law by the learned Judge below convinces us that he gave the parties a careful hearing and reached a just and equitable conclusion. We are all of the opinion that the decree ought to be affirmed and, therefore, we do not think a discussion and opinion from us would be profitable.

The assignments of error are all overruled, the decree is affirmed, and the appeal is dismissed at the costs of the appellant.


author: Orlady, J.,

text:
    Miller v. Graham, Appellant.

      Will — Devise—Boundaries—Division of town lot.

    Testator owned a town lot about fifty-eight feet wide. On the southern part of the lot he had erected a brick wareroom eighteen feet wide. On the northern part of the lot covering the remainder of the width, except four feet, he had erected a frame building. The intervening four feet was used as a hallway for both buildings during testator's lifetime. By his will he devised to his son W. “the wareroom and lot of ground covered by the same situate on High street, fronting twenty feet on said street.” He described the northern boundary of this devise as “north by lots, hereinafter devised to my son H.” He devised to his son H. thb lot on High street situated between the lot devised to his son W., and that owned by another person “being from thirty-five to forty-five feet front on High street.” Held, that W. took a lot twenty feet wide, and not merely the ground eighteen feet wide covered by the wareroom.
    Argued May 12,1909.
    Appeal, No. 170, April T., 1909, by defendant, from judgment of C. P. Butler Co., June T., 1908, No. 79, on case tried by the court without a jury in suit of William F. Miller v. E. T. Graham.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      From the record it appeared that the defendant claimed title through Henry A. Miller. After he had acquired title he erected a small wooden building on the rear of his lot in such a manner that it occupied a strip of two feet claimed by the plaintiff as having been devised to him by his father.
    The facts of the case are fully stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant.

      John H. Wilson, with him John C. Graham, for appellant. .

      John R. Henninger, for appellee.
    July 14, 1909:
   Opinion by

Orlady, J.,

This action of trespass is to be determined by the interpretation of a clause in the will of William H. Miller, under which both parties hereto claim title. After the case was at issue, it was agreed to dispense with a trial by a jury, and to submit its decision to the court of common pleas of Butler county, under the Act of April 22, 1874, P. L. 108.

The clause in the will which is the ground of this controversy is as follows: “ 1. I devise to my son William F. Miller, the wareroom and lot of ground covered by the same, situate on High or Main Street, fronting twenty feet on said street, bounded south by lot or house of Mrs. Hazlett, east by High or Main Street, north by lots hereinafter devised to my son Henry A. Miller, and west by an alley, and I charge on this devise to my son William F. Miller, the sum of five hundred dollars to be paid by him to my daughter Mary L. Miller, within five years after the death of my wife.

“ 2. I devise to my son Henry A. Miller all that certain lot or ground situate in the borough of Butler, bounded on the east by High or Main Street and situated between the lot devised to my son William F. Miller and lot of George W. Reed, being from thirty-five to forty-five feet front on High or Main Street, and bounded on the north by lot of George W. Reed and on the west by an alley.”

The appellant contends that the decedent used the words “wareroom and lot of ground covered by the same” for the purpose of establishing the north line of the devise to William F. Miller, and that the words, “fronting twenty feet on Main Street” must give way to the marks or monuments on the ground, to wit: the wareroom and ground covered by the same.

When William H. Miller prepared his will he called before him his children, and explained by a sketch, the disposition he intended to make of his estate. His will was probated in 1878. He left to survive him his widow', two sons and a daughter. On December 13, 1900, Henry A. Miller sold the part of the lot devised to him to a party whose vendee is the present defendant. In the making of this conveyance the widow joined, and she subsequently died November 23, 1902. The two properties in dispute represent a single borough lot, fronting fifty-seven feet nine and one-fourth inches on Main street, bounded by said street on the east, and extending back of equal width 180 feet to Jackson alley. It is bounded by lot of George W. Reed on the north and on the south by lot of Mrs. Hazlett. There were two buildings erected on the lot at the time the will was made, and they have remained in the same condition continuously until the time of this trespass. On the lot devised to William F. Miller, the testator had erected a brick building, fronting eighteen feet one inch on Main street, and on the lot devised to Henry A. Miller, he had erected a frame building, occupying the space between the lot devised to William F. Miller on the south, and the property of Reed on the north. The brick building extended farther back to the west than did the frame building which was constructed afterward, and they were so joined as to leave a hallway or open space about four feet wide along the south side of the wooden building, which served also as a hallway along the north side of the brick building. From this hallway, doors opened into the wooden building on the north side, and extended the full length of that building to a porch in the rear end thereof, from which porch a doorway opened into the brick building, on the south side of the hallway. By this construction the hallway was used in connection with both the frame building and the brick building during the lifetime of the testator.

That the testator did not know, or at least was not particular about the exact measurement of the subdivisions of this lot, is shown by his designation of the several frontages on Main street. He gives twenty feet to William, on which he had erected a brick building eighteen feet one inch wide, and gives to Henry the other part of the lot, from thirty-five to forty-five feet of frontage on said street. Nor is he critical in the use of words. He uses the words, “ lot ” and “ lots,” as if there were more than one property. He gives William a “lot” of ground though it is only a part of a lot. He mentions “lots hereinafter devised to my son Henry,” although that devise is for but part of a single lot. He uses the word “ lot ” and the word “ house ” as of equal descriptive character to designate the title of the adjoining property of Mrs. Hazlett. In defining the southern boundary of William’s share he calls for a lot, and not a wareroom as contended for by the appellant. It is urged that this was merely a misdescription of the width of the lot, an error of measurement, an instrumental and not a monumental error. And, as the courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence where the marks or monuments are gone, the lot of William is limited in width to the exact frontage of the warehouse: Lodge v. Barnett, 46 Pa. 477; Morse v. Rollins, 121 Pa. 537; Long v. Shields, 20 Pa. Superior Ct. 559. The force of these authorities cannot be challenged, but we think they do not apply in this case.

Where a devise contains a plain and certain description of the thing devised, any other description referring to the devise which might indicate less than what is embraced in the plain description, must be regarded as defective and will be rejected. The appellant’s case depends upon the interpretation of the description of the William F. Miller lot, “The wareroom and lot of ground covered by the same.” To hold that only the land covered by the building was intended, would leave undisposed of that part of the land between the building and Jackson alley in the rear, which was surely not intended. The word “covered” is not limited to a single and unmixed meaning, but is flexible in its application, and is applied in various ways. When the decedent spoke of “the lot of ground covered by the same” he evidently meant the lot of ground on which the ware-room was erected, with a frontage of twenty feet on High street. The natural and reasonable division of the property was made by the testator when the buildings were erected by him, and that division existed at the time he made his will. The width of the wareroom building, with the undefined space between the wareroom building and the Jackson alley in the rear, does not raise a latent ambiguity under the generous use of words made by the testator, in describing his property. Manifestly he intended to give the brick building with its appurtenant lot twenty feet front, to William A; and the frame building with its appurtenant lot thirty-seven feet ten inches front to Henry F., and he intended that the common use of the four foot hallway between them should be continued as theretofore, but that the title to the twenty feet front should be in William, and the remainder of the frontage in Henry. This is the interpretation of the will that was put upon it by all parties interested, until the title to Henry’s part passed out of the family, and even when the appellant purchased he so regarded it, and secured a reduction of the purchase price for the property. He now seeks by this action, to secure a strip of land which he never bought or paid for, and which was not intended to be conveyed to him by .his grantors.

This disposes of the principal question involved, and the other assignments are not considered. The judgment is affirmed.


author: Beaver, J.,

text:
    Hughesville Borough School District v. Wolf Township School District, Appellant.

      School law — High schools — Grade of school — Payment for tuition in high school — Acts of May 8,1854, sec. 23, P. L. 617, May 26, 1893, P. L. 146, June 28, 1895, P. L. 413, and March 16, 1905, P. L. 40. — Constitutional law — Bill of rights — Local act — Title of statute.

    1. Apart from the Acts of May 26, 1893, P. L. 146, and June 28,1895, P. L. 413, a school district has the right to establish a high school under the powers conferred upon it by the General School Law of May 8,1854, P. L. 617, which provides that “the directors and controllers of the respective districts shall have power to establish schools of different grades, and to determine into which school each pupil shall be admitted.” High schools created under this act are high schools within the meaning of the Act of March 16, 1905, P. L. 40, which provides that “children residing in school districts in which no public high school is maintained may attend a high school in some other district located near their homes,” with the consent of the directors of such district and payment of cost of tuition.
    2. The Act of March 16, 1905, P. L. 40, relating to the tuition of children in high schools outside of districts in which the children reside, is constitutional. It does not offerid against the bill of rights as interfering with property or the right to contract; nor does it violate sec. 1, of art. X, of the constitution; relating to the maintenance and support of a system of public schools; nor is it contrary to sec. 7, art. Ill, of the constitution as a local or special act; nor does it infringe upon art. Ill, sec. 3, of the constitution as being defective in title in not indicating by whom the tuition of nonresident pupils in high schools is to be paid.
    Argued Feb. 24, 1909.
    Appeal, No. 9, Feb. T., 1909, by defendant, from judgment of C. P. Lycoming Co., March T., 1907, No. 403, for plaintiff on case tried by the court without a jury in suit of The School District of Hughesville Borough v. Wolf Township School District.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to determine liability of a school district for the tuition of pupils of such district in the high school district of a neighboring district.
    The case was tried by Hart, P. J., without a jury under the Act of April 22, 1874, P. L. 108.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff for $138.75.

      W. E. Crawford, for appellant.

      W. C. Gilmore, with him Ermin F. Hill, for appellee.

      July 14, 1909:
   Opinion by

Beaver, J.,

Under the ninth paragraph of the twenty-third section of the Act of May 8,1854, P. L. 617, it is provided that, “The directors and controllers of the respective districts shall have power to establish schools of different grades, and to determine into which school each pupil shall be admitted.” In accordance with this general power, under what is known as our common school law, the school directors of the borough of Hughesville undertook at different times to establish different grades in their schools and, as the evidence of their establishment, placed the record of their action upon the minutes of the board. The plaintiff offered the minutes of the school board in evidence, in order to show that a high school as such had been established in the borough. Exception to the introduction of such evidence was taken and the evidence was admitted.

In 1893, P. L. 146, specific authority was given, in addition to the powers and duties conferred or enjoined by the act of May 8, 1854, to boards of controllers or directors in school districts which are composed of cities or boroughs divided into wards for school purposes, or boroughs not divided into wards for school purposes, having a population of 5,000 or over, to “establish a public high school.”

June 28, 1895, P. L. 413, what is known as the township high school act was passed, under and by virtue of which “The directors or controllers of any school district may establish a public high school,” providing for the grading of the same, “and the state superintendent of public instruction shall prescribe a uniform course of instruction which shall be taught in the high schools of each grade.” This act also provides in its fourth section — and this seems to be one of its most distinguishing features — for the manner in which appropriations in aid of high schools of the different grades shall be apportioned.

These and later acts enlarged the powers of the boards of school directors and controllers named therein, and also limited them in certain respects, so as to control more completely the high schools of the state and to place them, so far as the course of instruction was concerned, and in their general oversight, under the control of the department of public instruction. It has never been held, however, so far as we know, that the so-called high schools, erected by the several boards of school directors and controllers, under the provisions of the act of 1854, were improperly or improvidently established and conducted, because they had no power to establish schools of the grade of high schools. On the contrary, it was the general custom throughout the commonwealth to establish schools of that grade, under the name of high schools, and many are still so maintained, most of them perhaps not being within the provisions of the act of 1893 and not having brought themselves within the provisions of the act of 1895, and yet schools previously established and maintained for many years are carrying forward their work as high schools, as efficiently perhaps, and with equal authority, under the act of 1854. No limit in the ninth paragraph of the twenty-third section of the act of 1854 is prescribed, and the power to establish a high school would be apparently as well conferred as that to establish a primary school or the several grades of what is called a grammer school. The reception of the testimony contained in the minutes of the plaintiff school board, as complained of in the first, second and third assignments of error, was, therefore, proper for the purpose for which it was introduced. It follows that the plaintiff’s ninth point, “ That the evidence in this case establishes the fact that the school district of the borough of Hughesville was maintaining a public high school within the borough of Hughesville during the school year 'of 1905-1906,” was properly affirmed, as was also the plaintiff’s first request for a finding of law upon the same subject.

The plaintiff seeks to recover in this case under the provisions of the Act of March 16, 1905, P. L. 40, which provides: “That children residing in school districts in which no public high school is maintained, may attend a high school in some other district, located near their homes; provided the consent of the directors of the district in which said high school is located be first obtained; the cost of tuition and school books, which shall not exceed that of the tuition and school books of children in the same course or courses in the district maintaining such high school, shall be paid to the district receiving such children, out of the moneys raised by taxation for public school purposes in the district in which said children reside: Provided, That, before admission to a high school, such pupils shall be examined and found qualified for high school work, by the principal of such high school.”

Certain children residing in the defendant district, after examination by the principal of the high school, were received, at the request of their parents, into the high school of the school district of the plaintiff borough and were taught there during the school year of 1905-1906.

The seventh, eighth and ninth assignments of error are based upon the alleged unconstitutionality of this act of assembly. The portions of the constitution against which this act is alleged to offend are the first section of the first article, in which it is asserted: “We declare that all men are born equally free and independent and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” The respect in which this provision of the constitution is alleged to be infringed is, “in that the said act of assembly interferes with the right of possessing and protecting property and the consequent right of making contracts in relation thereto, and is, therefore, unconstitutional and void.” The argument seems to be that “the money raised by taxation for school purposes is the property of the school district, that the possession and disposition of the school funds belong to the board of directors,” and that, therefore, no obligation rests upon them for the payment of any money, unless it arises under a special contract made by the board itself. This is a somewhat novel appeal to what is known as our “Bill of Rights.” That declaration deals specifically with the inherent and indefeasible rights with which men are born and are those which relate to natural persons and not to the artificial persons which are the creatures of law. A school board is exclusively the creature of law. It has such rights, and such only, as are conferred upon it by its creator. True it is for some purposes a legal entity but becomes such solely by the operation of law, and so cannot assume, as such entity, the rights, privileges and immunities which belong to the individuals composing the legal entity as natural persons. “ In Pennsylvania, a school district is but an agent of the commonwealth, and as such a quasi corporation for the sole purpose of administering the commonwealth’s system of public education:” Ford v. Kendall Boro. Sch. Dist., 121 Pa. 543. It is, therefore, impossible to try the constitutionality of a law which restricts the power and authority of such a creature by a constitutional provision which has no relation to it but relates entirely to the rights, liberties, privileges and immunities of natural persons. A school board is a quasi corporation, recognized as such because it is essential for the purposes of its creation that it should have the power to levy taxes, build schoolhouses, employ teachers, establish grades in schools under its control and do the many things necessary to carry forward our system of public education, and authorized by the law which creates it. But none of these are natural rights. They are conferred by the power which creates the school board and constitutes it an artificial person for the purpose of providing for the welfare of the community at large by the establishment and maintenance of a system of education for the young. None of the authorities referred to by the appellant sustain in any respect its contention. All relate to the rights of natural persons.

We are unable to see why the legislature, in carrying out the provisions of sec. 1 of art. X, which directs that, “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this commonwealth above the age of six years may be educated,” should not have the power, by appropriate legislation, to authorize the attendance of the children of one school district where no high school existed upon a high school of an adjoining district. It seems to us that the maintenance of any system, much more a “thorough and efficient system,” involves such power as this implies.

The second ground of attack upon the constitutionality of the act of March 16,1905, is that it is contrary to sec. 7, art. Ill, being local or special. Wherein is the act of March 16, 1905, local or special in reference to school districts? It relates to all children residing in school districts in which no public high school is maintained, and confers the right to attend a high school in some other district located near their homes. We take it that the act confers upon all children of townships where no high schools are located the right to attend a high school of any township near their homes. That is, if a township without a high school were surrounded by two or more townships in which there were high schools, the children qualified for entrance to the high school which they propose to attend would be entitled to enter the school in that township which was th$ nearest, time and distance being considered, to their home. In this we can see no effort or intent on the part of the legislature to confer a special privilege upon any of the inhabitants of any school district or to discriminate against any. Some may be compelled to travel farther than others to reach a high school, but that is not a discrimination created by the law, the object, as we understand it, being to give to all the children of the commonwealth, deprived of the privilege of attending a high school in their own township, the right to attend the high school nearest to their home, and this is not, as we view it, repugnant to the seventh section of the third article of the constitution.

No one article of the constitution perhaps has received more careful and varied attention in its interpretation than the third, particularly as relates to its seventh section. In general, “ When the legislative intent is not to evade the restrictions of the constitution, the courts are not required to be astute in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution. In statutes local in form but not in intent violative of the constitution, the courts will look beyond the mere form of the act, and examine its true intent and effect in the light of the purpose of the constitutional restrictions:” Bennett v. Norton, 171 Pa. 221. This act, as we view it, is simply a recognition of the principle of classification which has been so largely introduced into our legislation by reason of the necessities which have arisen by virtue of the restrictive provisions of this third article of the constitution, and it has been held in Com. v. Gilligan, 195 Pa. 504, that, “There is no constitutional objection to the classification of school districts anymore than of cities. Both are included in the same clause of the constitution prohibitory of local or special legislation, and there is no argument against classification of one that is not equally forcible against the other. /

“Classification is the grouping together for the purposes of legislation of communities or public bodies which, by reason of similarity of situation, circumstances, requirements and convenience, will have their public interests best subserved by similar regulations.

“With reference to public matters and legislative usage, necessity means great or urgent public convenience. The necessity for classification is the necessity of escape from the intolerable inconvenience of uniformity of regulations under circumstances and needs essentially different springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others.” Classification applies to' school districts without high schools and such as have high schools as fully as though classified by numbers.

All this applies with special force to the necessity imposed by the constitution itself upon the legislature to provide a thorough and efficient system of education which, as we take it, involves the education of all the children of the commonwealth upon terms and conditions practically the same, or as nearly similar as circumstances will admit. The act applies, it is true, to townships of different classes, the one in which there are high schools, the other in which there are no high schools, but the tendency after all is toward uniformity and not diversity, that is, uniformity in the privileges to be conferred upon the inhabitants of the commonwealth, the necessity for the provision for which arises from the diversity in the conditions which surround them in the differences in the several school districts in which they reside.

The third ground upon which the constitutionality of the act is attacked is that its title is defective. The title is as follows: “An act permitting children, residing in school districts in which no public high school is maintained, to attend a high school in some other district, located near their homes, and providing for the payment of cost of tuition and schoolbooks.” The title of this act gives clear and unequivocal notice that legislation affecting school districts in which there are no high schools and school districts in which there are high schools is provided, and that the children from school districts in which there are no high schools may attend the high schools of the districts in which they are provided, and that the tuition and books are to be paid for. Paid for by whom? That is to be ascertained, of course, by an inspection of the law, but the title is distinct notice to the parties principally interested, namely, the school districts in which there are no high schools and those in which there are high schools, to induce an inspection of the law to ascertain by whom and to whom payment for the education of these children is to be made. Seldom do we find a title to an act of assembly which more clearly indicates its scope and contents than the one under consideration. It is not necessary to cite authorities, which have become so numerous that they are already burdensome, upon this subject.

The borough of Hughesville, having been clearly shown to have maintained a high school within its school district and the children of inhabitants of the school district of Wolf township adjoining said borough having been properly examined and received into the said high school and having been furnished with books and received instruction in accordance with the provisions of the Act of March 16,1905, P. L. 40, we are of opinion that the school district of the borough of Hughesville had the right to recover from the school district of Wolf township the cost of tuition and schoolbooks, which did not exceed — and as to this there is no contention — that of the tuition and schoolbooks of children in the same grades or courses in the said school district of the borough of Hughesville.

Although the assignments of error are not pursued seriatim and in detail, we think we have disposed of the questions involved in this case, as argued and pressed upon us by the appellant. We find nothing in the trial of the case, which was conducted before the court by agreement, without a jury, which is in any way erroneous, and the conclusion is one which seems to us to be not only entirely justified by the law but in every way equitable and wholesome.'

Judgment affirmed.


author: Head, J.,

text:
    Commonwealth ex rel. v. Perrego, Appellant.

      Principal and surety — Public officers — Tax collector — Special tax— Special bond.

    1. Where a tax collector is required to perform a duty special in its nature and to give a special bond for its faithful performance no liability attaches therefor to his general bondsmen in the absence of an express declaration in the bond or an express statutory provision to the effect that they shall be so liable.
    2. Where the court of quarter sessions makes an order authorizing and directing the supervisors of a township to levy a special tax, and also orders in accordance with the provisions of the Act of May 25, 1878, P. L. 150, and a rule of court, that the tax collector of the township shall enter a special bond conditioned for the faithful collection and paying over of such special tax, and the tax collector of the township without entering a special bond and without the supervisors levying a tax, collects the special tax, and fails to pay it over, the surety on the general bond is not liable for the failure of the collector to account for the proceeds of the special tax which he had collected, in the absence of any agreement or undertaking on the part of such surety as to liability for such loss.
    Argued March 2, 1909.
    Appeal, No. 74, March T., 1909, by defendants, from order of C. P. Luzerne Co., Oct. T., 1908, No. 1,187, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth ex rel. Kingston Township v. James D. Perrego and the American Bonding and Trust Company of Baltimore.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a bond of suretyship.

      The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      G. J. Clark, for appellant.
    The condition of the bond sued upon is that fixed by the Act of June 25,1885, P. L. 187, providing for the election of tax collectors, and does not extend beyond the statutory requirements. It is strictly a statutory bond, limited to the duties imposed by law upon the collector: Sullivan County v. Middendorf, 7 Pa. Superior Ct. 71; Com. v. Knettle, 182 Pa. 176.
    The collection of this special tax was a special privilege to which he had a right only on giving the special bond: Maries County v. Johnson, 55 Mo. 80; Anderson v. Thompson, 73 Ky. 132; Supervisors v. Ehlers, 45 Wis. 281; Com. v. American Bonding & Trust Co., 16 Pa. Superior Ct. 570; Com. v. Reinhart, 15 Pa. C. C. Rep. 487; Com. v. Stambaugh, 164 Pa. 437.
    The liability of sureties for the faithful performance of official duties is not generally measured by the law requiring sureties, but by that imposing the duties: Dyer v. Covington Twp., 28 Pa. 186; Com. v. Singer, 31 Pa. Superior Ct. 597; Monroe County v. Eilenberger, 34 Pa. Superior Ct. 22-27.
    A principal may be liable beyond the condition of his bond, whilst the surety’s liability must ever be measured by the instrument of suretyship: Wylie v. Gallagher, 46 Pa. 205-209.
    The surety may defend against tax balances of previous years which were carried forward and form a part of the balance sued for: Com. v. Carson, 26 Pa. Superior Ct. 437; s. c., 28 Pa. Superior Ct. 477; Sullivan County v. Middendorf, 7 Pa. Superior Ct. 71.

      W. Alfred Vallentine, with him W. 8. Casterlin and L. Floyd Hess, for appellee.
    Where an officer or agent executes a bond in general terms for the faithful performance of his duties, it extends to and covers all acts done within the general scope and authority of the officer or agent: Dawson v. State, 38 Ohio, 1; King v. Nichols, 16 Ohio, 80; Board of Education v. Quick, 99 N. Y. 138; People v. Vilas, 36 N. Y. 459; Bank v. Cresson, 12 S. & R. 306; Castor’s App., 2 Penny. 337; Water’s App., 10 W. N. C. 146; Sullivan County v. Middendorf, 7 Pa. Superior Ct. 71, 73.
    The sureties on a bond of a tax collector are liable for taxes collected by him although the warrant to collect them was never delivered to him: Com. v. Stambaugh, 164 Pa. 437; Harrisburg v. Guiles, 192 Pa. 191-201.
    Under the provision of the bond the defendant surety is liable as the collector is liable for all moneys which come into his hands by virtue of his office: Monroe County v. Eilemberger, 34 Pa. Superior Ct. 22; Mayor of New York v. Goldman, 125 N. Y. 395; Swatara Twp. School Dist. App., 1 Pa. Superior Ct. 502; Com. v. Gruver, 13 Pa. Superior Ct. 553; Com. v. Sweigart, 9 Pa. Superior Ct. 455.
    July 14, 1909:
   Opinion by

Head, J.,

This action is founded on the official bond given by one Perrego to the plaintiff township. Upon this bond the American Bonding Company became surety. The surety alone filed an affidavit of defense. The learned trial court made absolute a rule for judgment for want of a sufficient affidavit, and the surety appeals.

Perrego was duly elected tax collector for Lake township at the spring election of 1900. His term began the first Monday of April that year and continued three years. Under the provisions of the Act of June 25,1885, P. L. 187, as modified by the later Act of June 6,1893, P. L. 333, he was required to annually give the bond which, under the terms of the earlier act, would have been given upon his assuming the duties of his office, and would have covered his entire term. The bond in suit was apparently the second of these bonds and was given in the spring of 1901, having been filed on May 17 of that year. It was the only bond given by the collector in that year, and it cannot be. denied that it was the official- bond contemplated by the acts referred to. The condition of the bond, following the provision of the act of 1885 on the subject, was that the collector should “well and truly collect and pay over dr account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him.” It further contained the following: “and faithfully discharge the duties appertaining to the office of collector of taxes according to law.”

There is no complaint that the collector made any default in the performance of the ordinary and regular duties of his office, or that he failed to collect and account for any moneys, the right to collect which inured to him solely by virtue of his election to that office. If, therefore, the obligation which the surety undertook to assume related only to the discharge, by the collector, of the duties imposed upon him, flowing directly from his elective office, it would be without liability in this case.

The plaintiff alleges, however, that as early as 1899 there was begun in the court of quarter sessions of Luzerne county, a proceeding to obtain a decree authorizing and directing the supervisors of Lake township to levy a special tax for the purpose of paying certain accumulated indebtedness of the township. We do not think we are required in the present condition of the record to consider the character of the indebtedness for which this special levy was ordered, nor the regularity of the proceedings which led up to the decree. It is sufficient to note that after the entry of several prior decrees — which for one cause or another had to be modified — the court on March 11,1901, made an order in which the supervisors “were directed to levy and collect by special taxation in the year 1901 a tax of seventeen and one-fifth (17£) mills on the dollar; etc. . . . And it is further ordered and decreed that the treasurer of said township and borough and the collector of taxes thereof shall each execute and file in the clerk's office a bond in double the amount of the said special tax in each instance, with two or more sufficient sureties to be approved by the court or a judge thereof, conditioned for the faithful collection and paying over of such special tax.” From the portions of the record printed in the appellant's paper-book, the accuracy of which is not denied, it would appear that matters remained in statu quo — nothing being done to execute this order — -until by a still later and final order of September 26, 1901, the previous order of March 11, as to the levy was so modi- ’ fled “that a special tax of ten (10) mills be levied this year, 1901, and balance in 1902.” No such bond as was required in the order quoted was given by the collector. The declaration avers, however, that it was because “said James D. Perrego, while acting as tax collector of said Kingston township in said year 1901, did fail to collect, pay over, or account for the sum of $1,236.42 of the special taxes charged and assessed in the duplicates given to him for said year,” that the present appellant, his surety on his general official bond, has become liable.

The general Act of May 25, 1878, P. L. 150, provides, “that it shall and may be lawful for all the several courts of any county of this commonwealth to require of the proper parties of any borough, township or district, authorized and empowered to collect special taxes, a bond in such amount as the court shall direct, conditioned for the faithful collection and paying over of all special taxes directed to be assessed and collected for the purpose of paying indebtedness,” etc. It further appears from the record that the courts of Luzerne county have adopted a rule of court carefully regulating the practice of the court in ascertaining the indebtedness of boroughs and townships and carrying into effect the requirements of the law in relation thereto. The eleventh and twelfth sections of said rule provide: “Before any proceedings are taken for the collection of the special tax, the township or borough treasurer and collector shall each execute and file in the clerk’s office a bond in double the amount of the special tax, with two or more sufficient sureties, to be approved by the court or a judge thereof, conditioned for the faithful collection and paying over of such special tax. ... If after five days’ notice to do so, on or before a day designated by the court, the said officers shall fail to give bond as above required, the court shall appoint a tax collector, who, after giving bond as aforesaid, shall collect the said tax,” etc.

Reading together then the act of 1878, the decree entered by the court, already quoted, and the provisions of the rule of court just cited, it seems to us to be clear that no right to collect the special tax devolved upon Perrero solely by reason of the fact that he had been elected the general tax collector of Lake township and had given the bond required by the statute to qualify him to assume the duties of that office. The regularly elected collector may have had the first right to specially qualify himself to collect this special tax. But such right, if not exercised by a compliance with the provisions of the act of 1878 and the decree of the court made in accordance with its rule, would be lost or transferred to the special appointee of the court. The collector could not be compelled to exercise it. No obligation to undertake such special collection was cast on him by the law as part of the duties of the office to which he had been elected.

In construing the obligations of sureties upon such official bonds, our courts have been careful to confine them to those which are clearly covered by the condition of the bond, and hence could be fairly said to have been contemplated by the surety when the bond was executed. In Com. v. Knettle, 182 Pa. 176, the Supreme Court, speaking through Mr. Justice Mc-Collum, said: “While he [the collector] is elected for a term of three years, he must give a bond annually to be approved by the court. The bond of each year is applicable to and security for the taxes of that year. It does not extend to or include the taxes of the preceding or subsequent year.” To the same effect is Sullivan v. Middendorf, 7 Pa. Superior Ct. 71. In 27 Am. & Eng. Ency. of Law (2d ed.), 805, where many cases are cited, the following is declared to be the general principle to be gathered from all the decisions: “ Inasmuch as Lability attaches to the sureties solely by virtue of the terms of the bond, the sureties are entitled to stand upon it, and are ordinarily responsible for the performance of such duties only as are incident to the office at the time the bond is executed. . . . The general rule is that where a collector is required to perform a duty special in its nature and to give a special bond for its faithful performance, no liability attaches therefor to his general bondsmen in the absence of an express declaration in the bond or an express statutory provision to the effect that they shall be so hable.” Nearly a century ago, in Beale’s Executors v. Com., 17 S. & R. 392, it was held that an administrator and his surety are not liable on the administration bond for the proceeds of real estate of the intestate sold by order of the orphans’ court. This case was followed in Blauser v. Diehl, 90 Pa. 350, in which it was held that where the real estate of a minor is sold, under an order of the orphans’ court, the original sureties of the guardian are not liable for the failure of the guardian to pay over the proceeds of the sale. In that case Mr. Justice Gordon said: “A guardian has, by virtue of his appointment, no power to alien the land of the minor of whom he has charge; that power is conferred by statute, and only under and subject to prescribed conditions. It is a power entirely separate and distinct from that conferred by the appointment. ‘ The statute under which these proceedings were had, requires the court, before it confers such new power upon the guardian, to see that he executes a bond, with sufficient sureties, conditioned for the faithful appropriation of the proceeds of the proposed sale. . . . The sureties of the guardian are liable for all moneys or property that may come into his hands under the original power. . . . But in such case there is no new power conferred upon the guardian; he takes by virtue of his original appointment.” This case again was followed by this court in Com. v. American Bonding & Trust Co., 16 Pa. Superior Ct. 570, and 25 Pa. Superior Ct. 145.

These cases leave no room to doubt that the liability of the present appellant, so far as the record now discloses the facts, must be confined to moneys, the collection of which became the right and the duty of the tax collector by virtue of the office to which he was elected. As already stated, nothing appears upon the face of the bond to indicate that the surety had any knowledge that it was to cover any other liability than that expressed in its terms, nor does the statement contain any averment that the surety did in fact have such knowledge. If the fact of such knowledge were averred and established on the trial, a different result might follow.

We are not unmindful that the statement, after reciting the decree of the court, avers: “And in pursuance of the said decree of court, as well as in compliance with the law requiring a general bond to be given annually by him, said Perrego, on May 8, 1901, procured the American Bonding & Trust Company, of Baltimore, defendant, to execute jointly with him a bond,” etc., to wit: the bond in suit. This averment does no more, however, than impute to Perrego the intention to make this single bond answer the purposes of both general and special bond. It in no way asserts that the surety had any knowledge of such intention or undertook to assume the obligations that would follow the giving of two bonds.

The affidavit of defense further declares that: “The supervisors of said township of Kingston did not in or for the year 1901 levy and assess such special tax or any special tax under said decree, and did not prepare or cause to be prepared a duplicate thereof, and did not issue any warrant for the collection thereof.” As the purpose of this action was to establish the liability, not of Perrego, which may be conceded, but of the surety upon his bond, it seems to us the averment above quoted was a most material one. The decree of the court did not levy a tax. It ordered and authorized the supervisors to levy one. Until they obeyed that decree, there was no tax. It is no answer to say that if the collector, even without authority, proceeded to collect money from the taxpayers on their belief in his authority to do so, he himself would be liable to account for the money thus received. And it may also be conceded that when the township auditors proceeded judicially, as they had a right to do, to ascertain the extent of the indebtedness of the collector to the township, their judgment, if unappealed from, would be conclusive upon the officer. In this proceeding the surety had no day in court on the question now under consideration. Its liability must be fixed by a just construction of the bond it executed, and not by the report of the township auditors. For the reasons thus indicated we are of the opinion that the learned court below fell into error in making absolute the rule for judgment.

Judgment reversed and a procedendo awarded. The costs of this appeal to be paid by the appellee.


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    Manola v. Enterprise Stamping Company, Appellant
    (No. 1).

      Negligence — Master and servant — Infant—Dangerous machine.

    Where a boy under fifteen years of age employed in a factory is instructed by the superintendent after he had worked for several days at a particular machine, to take another machine and do some other work, and he is not instructed what machine to take, or told how to work the one which he chose, and he is injured, the employer may be held liable for the injury, although the boy's testimony as to what occurred was denied by the defendant.
    Argued May 7, 1909.
    Appeal, No. 199, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 138, on verdict for plaintiff in case of Joseph Manola, by his father and next friend, Lewis Manola, v. Enterprise Stamping Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swearingen, P. J.
    For the facts see the opinion of the Superior Court and Manola v. Enterprise Stamping Co., 223 Pa. 116.
    Verdict for plaintiff, Joseph Manola, for $900, and for Lewis Manola for $600. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. S. 'Dalzell, of Dalzell, Fisher & Hawkins, for appellant.
    It was incumbent upon the plaintiff, in order to recover, to prove by affirmative evidence that the defendant had been guilty of the negligence alleged: Melchert v. Brewing Co., 140 Pa. 448; Zurn v. Tetlow, 134 Pa. 213; Ash v. Verlenden Bros., 154 Pa. 246; O’Keefe v. Thorn, 24 W. N. C. 379; Gillem v. Rowley, 134 Pa. 209; Vant v. Roelofs, 217 Pa. 535.

      Meredith R. Marshall, with him Rody P. Marshall, for appellee.
    In case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks .which they cannot properly appreciate, and to which they should not be exposed: Doyle v. Pittsburg Waste Co., 204 Pa. 618; Rummel v. Dilworth, Porter & Co., 131 Pa. 509.
    July 14, 1909:
   Opinion by

Beaver, J.,

This action of trespass for personal injuries to Joseph Manola, the minor son of Lewis Manola, was twice tried in the court below. Upon the first trial the court granted a compulsory non-suit which it refused to take off. Upon appeal to the Supreme Court, this refusal was assigned for error and the judgment was reversed. Mr. Justice Mestrezat, speaking for the court, in his opinion, said: “ It is conceded that the boy was not instructed how to operate the rolls, and that was a duty imposed upon the defendant company if the boy was employed to work there. The single question was, therefore, whether the boy was justified in going to work at the rolls under the instructions he had received from the superintendent. Under the evidence in the case, the question was for the jury:” Manola v. Enterprise Stamping Co., 223 Pa. 116.

At the second trial, which we have under review, on appeal, in which the refusal of the court to give binding instructions in favor of the defendant and to enter judgment for defendant non obstante veredicto are assigned for error, the effort was made to distinguish the case from itself, and it is argued before us that this effort was successful, the facts elicited on the second trial being such as to justify the court in disregarding the opinion of the Supreme Court, based upon the facts as elicited in the first trial. In our view of the case this effort was not successful. Although the facts as elicited at the second trial may have differed to some extent, those which were fundamental remained practically the same. The plaintiff who was injured, although less than fifteen years of age at the time of the injury, was about eighteen at the time of the second trial. His testimony in regard to his instructions was: “Q. Did Mr. McGhee tell you anything about where to work? A. Oh, he told me, after I worked there for about three or four days — he told me to take some other machine after I had a stock — to take another machine and do some other work. Q. Tell us as near as you can what words he used when he told you that? A. Said 'Boy, when you have a stock on/ he says, 'take some other thing to do.' Q. Did he use the word 'machine' in telling you that? A. Yes, sir, he said machine too. He said anything or take a machine, yes, sir." This general direction to the plaintiff is denied, but it is practically conceded that no instruction in regard to the management of the rolls at which he was injured was given him. The question was, therefore, for the jury as in the former trial.

The court below, following the practical direction of the Supreme Court, left the case to the jury upon this question and submitted it in such a manner as to the general question of negligence and of contributory negligence that there is no specific assignment of error as to the parts of the charge covering these questions.

In our opinion, there was no such change in the facts elicited upon the second trial as would justify the court below in disregarding the opinion of the Supreme Court. Inasmuch as there is no exception to the manner in which the case was submitted, we must assume, as it is easy to do from an examination of the charge, that there was nothing objectionable in the manner in which the case was submitted to the jury.

Judgment affirmed.


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    Manola v. Enterprise Stamping Company, Appellant
    (No. 2).
    Argued May 7,1909.
    Appeal, No. 200, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 138, on verdict for plaintiff in case of Joseph Manola, by his father and next friend, Lewis Manola, v. Enterprise Stamping Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.

      July 14, 1909:
   Opinion by

Beaver, J.,

Two verdicts were rendered and two judgments entered in the case of Joseph Manola, by his father and next friend, Lewis Manola v. Enterprise Stamping Co., and from these judgments separate appeals were taken to this court by the defendant company. An opinion has this day been filed in the case of the judgment entered in favor of the son, Joseph Manola, ante, p. 328. Both verdicts and judgments were in the same suit. The questions involved in both of these appeals are, therefore, the same. They have been disposed of in the case already considered and in which an opinion has been filed, supra.

For the reasons therein stated, the judgment rendered in favor of Lewis Manola, the father of the injured minor, is also affirmed.


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    Thaler, Appellant, v. Wilhelm Griesser Construction Company.

      Mechanic’s lien — Notice by subcontractor — Contract—Plans and specifications — Act of June 4, 1901, P. L. 431.
    Where a contract between a contractor and subcontractor does not make the plans and specifications of the building contract a part of it, nor provide that a copy of such plans and specifications shall be attached to the contract of the subcontractor, it is not necessary for the latter to attach a copy of such plans and specifications to the notice to the owner of an intention to file a lien; and this is especially so when it appeared by the contract and by the defendants affidavit of defense that the owner had in his possession, during all the time, the plans and specifications in question.
    Argued May 12,1909.
    Appeal, No. 175, April T., 1909, by plaintiffs, from judgment of C. P. Butler Co., Dec. T., 1903, M. L. D. No. 4, on verdict for defendant in case of August J. Thaler and William Thaler, Copartners as Thaler Brothers, v. Wilhelm Griesser Construction Company and the Butler Brewing Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Scire facias sur mechanic’s lien. Before Galbreath, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John M. Greer, with him Frank E. Lord, John B. Greer and Thomas H. Greer, for appellants.
    We think that this case is fully covered by the decision of the Superior Court in Day v. Penna. R. R. Co., 35 Pa. Superior Ct. 586. See also Thirsk v. Evans, 211 Pa. 239; Este v. R. R. Co., 27 Pa. Superior Ct. 521; American Car & Foundry Co. v. Water Co., 215 Pa. 520.

      Lev. McQuistion & Son, with them A. M. Neeper, for appellees, cited:
    Knelly v. Horwath, 208 Pa. 487; McVey v. Kaufmann, 223 Pa. 125; Wolf Co. v. R. R. Co., 29 Pa. Superior Ct. 439; Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581; Collins v. R. R. Co., 29 Pa. Superior Ct. 547.
    July 14, 1909:
   Opinion by

Morrison, J.,

It seems to be necessary to make a rather extended statement of the facts which the plaintiffs allege they could have sustained before the jury. In making the following statement we are not assuming that the alleged facts cannot be successfully contradicted, but only that the plaintiffs seemed to have made a prima facie case, provided the jury found various allegations in their favor. But the learned court below saw fit to give a binding instruction in favor of the defendants on a technicality and thus put the plaintiff out of court; hence, this appeal.

The Butler Brewing Company desiring to build a brewery in Butler, Penna., entered into a contract for the construction of the same with the Wilhelm Griesser Construction Company of New York and Pittsburg. Among other things to be furnished by the contractor were eleven chip vats or pressure tanks and the said contractor sublet that portion of its contract to Thaler Brothers of Chicago, plaintiffs, who undertook the construction and putting in place of said vats and they actually did comply with their contract, in all respects, as they allege. The plaintiffs were to receive from the Griesser company $2,750 and actually received $1,380, leaving the sum of $1,370 due and unpaid. The plaintiffs who reside in Chicago averred that they furnished the material and completed the work according to their contract on July 26,1903. On October 16,1903, less than three months after the last work was done under plaintiffs’ contract, and more than thirty days before their lien was filed, the plaintiffs caused a written notice of their intention to file a mechanic’s lien against the brewery building, ground and property, to be served on David Smith, president of the brewery company, by the sheriff of Butler county. This notice embraced a copy of the written contract between the plaintiffs and the Griesser company, a statement of the contract, the character of the work and material, the contract price, the amount remaining due, and how made up, and the time when the last work was done and material furnished as required by the Act of June 4, 1901, P. L. 431. And within thirty days thereafter, notice was given to the owner that such lien had been filed of record. The contract was made between the subcontractors and the contractor by correspondence; the agreement made and signed by them and mailed to each other. At this time the plaintiffs did not have or see a copy of the plans and specifications which were referred to in their contract with the contractor. It is alleged, and we do not see that it is denied, that during all of the time while plaintiffs did their work and completed their contract with the contractor, said plans and specifications were in the possession of the owner, the Butler Brewing Company, at Butler, Penna. It appears that the contractor instead of furnishing the plaintiffs with a copy of the plans and specifications, sent them a typewritten letter, giving quantity of lumber, size of tanks, etc., shape of tanks, number of hoops, etc. This was about the time they signed the contract.

The plaintiffs sent their foreman to Butler to set up the tanks and the typewritten letter was handed to him, and it was never returned to the plaintiffs but was lost or destroyed. When the notice was given to the owner by the plaintiffs of their intention to file a lien, they did not have the plans, specifications and drawings, nor the typewritten letter above mentioned. After sci. fa. was issued on the lien, the brewing company, owner, filed an affidavit of defense to which all the plans, drawings and specifications, and everything belonging to its contract with the contractor were attached, and thereby made a part of the record. This was within 'six months from the date when the plaintiffs did the last work and furnished the last material under their contract. Therefore, it appears that the managing officers of the brewing company had full knowledge of the entire matter, and plaintiffs allege, and it does not seem to be denied, that the owner, the brewing company, at this time had over $27,000 of the money due the contractor in its hands.

After the trial and verdict, the plaintiffs moved the court for leave to amend their lien and pleadings, so as to cure the notice and attach the plans and specifications, etc., which the court permitted as to the lien but held that the notice could not be amended as that was a preliminary matter to the filing of the lien, and that the court had no power to permit the notice to be amended.

The error complained of specifically is directing the jury to find a verdict in favor of the defendants as follows: “In this case notice was given thirty days prior to the filing of the lien, but it seems that that notice, whilst it embraced a copy of this contract, did not embrace a copy of the specifications referred to therein and according to which this work was to be done. Now under these circumstances we are obliged to say to you that this lien is for that reason not self-supporting; that the lien does not show that such notice was given embracing that portion of these specifications relating to the vats in controversy. No such notice seems to have been given to the owner, that portion seemingly having been omitted. For these reasons we are constrained to say that this claim cannot be supported and it is our duty to say to you under the law that it is your duty to return a verdict in favor of the defendant.” This charge was duly excepted to and a bill sealed.

In the first place, the contract between the plaintiffs and the Griesser company did not make the plans and specifications and drawings between the owner and contractor, a part of said-contract, nor was it provided that they should be attached to the contract. It would seem that said contract between the plaintiffs and the Griesser Construction Company, dated April 25, 1902, for the construction of the vats, is largely copied from some other contract and it contains much irrelevant and immaterial matter, but it is clear and precise as to the eleven pressure tubs for the Butler brewery, to wit: “shall and will furnish all the material and perform all the work mentioned in the specifications and shown on the drawings prepared by the said architects for eleven pressure tubs for the Butler Brewery, Butler, Pa., delivered and set up, as per specifications at above brewery, which drawings and specifications are identified by the signatures of the parties hereto.” Now, as we have said, this contract does not make the plans and specifications a part of it, nor does it provide that a copy thereof shall be attached to the contract. Therefore, we hold that it was not necessary for the plaintiffs to attach a copy of said plans and specifications to their notice of lien. All that they could be legally required to do was to give notice of the character and amount of their claim and how made up, and attach a copy of the contract under which the work was done and the material furnished, and attach an affidavit as required by the act of June 4,1901. Especially is this so when it appears by the contract, and by the defendant’s affidavit of defense, that the officials of the brewing company actually had in their possession, during all the time, the plans, drawings and specifications about which they complain so vehemently now because of the failure of the plaintiffs to attach the same to their notice of lien.

While the plaintiffs seem to have had the services of a good many lawyers, it must be admitted that the work of making out and serving their notice of lien was not very artistically done, but, in our opinion, it was a substantial compliance with the provisions of the act of June 4,1901. We think this case is ruled by Day v. Penna. R. R. Co., 35 Pa. Superior Ct. 586, and the cases therein cited. In that case we said: “When we remember that the appellee’s contract was attached to this notice, and that it simply referred to the specifications of George M. Moulton & Company, and that they were not made a part of the contract, and that they were at all times in the custody of the appellant, we think this notice is sufficient. . . .

“We do not consider the alleged insufficiencies of the notice and claim as presenting any substantial difficulty. 'The object of the notice is to inform the owner of the demand and the nature thereof, in order that he may require payment of the contractor, or in default thereof withhold the amount from the contract price:’ Thirsk v. Evans, 211 Pa. 239. All the cases agree that a substantial compliance is sufficient, and this is shown to exist whenever enough appears on the face of the statement to enable the owner to ascertain the amount of the claim, its date, and the nature and amount of the labor or material out of which it arises: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521. In American Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520, a lien was filed by a subcontractor and it was stricken off by the court below. In reversing the judgment and reinstating the lien much was said by the Supreme Court that applies to the case in hand (see p. 525): 'But all the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the way to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without, in fact, adding anything to the security of the parties an interest in the building sought to be incumbered. Certainty to a common intent has, therefore, always been held to suffice:’” Day v. Penna. R. R. Co. 224 Pa. 193, was affirmed by the Supreme Court as follows: “Per Curiam. The judgment is affirmed on the opinion of the Superior Court.”

Now, referring to the present case for a moment with the fact that written notice of the amount of the plaintiffs’ claim, its nature and character, and a copy of the contract under which the material was furnished and the work done, was served on the president of the Butler Brewing Company at the proper time and that contract referring to the plans, drawings and. specifications which were in the possession of the officials of the brewing company as proved by the attaching of the same to their affidavit of defense, what possible benefit could have accrued to the brewing company, if the plaintiffs had secured a copy of the plans, specifications, etc., and had attached them to the notice. The answer is manifestly no benefit at all, because the brewing company officials knew at a glance just what kind of vats the plaintiffs had contracted to construct. If the plaintiffs did not in good faith construct the vats of the required material, and workmanship, their claim ought to be met on its merits, and not disposed of on a technicality which is without merit, either in fact or law, so far as we can see at present.

In the recent case of McVey v. Kaufmann, 223 Pa. 125, the court below was reversed for sustaining a lien by a subcontractor on account of defects in the notice. In that case, after quoting the notice, Mr. Justice Brown says: “Neither in the notice nor in the attached affidavit is the contract set forth under which the appellee’s claim. Nothing can be gathered from them as to a contract between the subcontractors and the contractor, except that there was one. The date of it is not given, not one of its .terms is stated, and whether it was written or verbal no one can tell.” But the notice in the present case is open to no such criticism. It contains all the requisites, refers to the contract and attaches a copy of the same to the notice.

The judgment is reversed with a venire facias de novo.