text:
    Hall’s Safe Company v. Walenk, Appellant.

      Corporations — Foreign corporations — Registration—Doing business.

    1. A foreign corporation which merely files an order for goods and delivers the same in Pennsylvania, without maintaining an office in this state or transferring any portion of its capital to this state, or prosecuting its ordinary business here, may maintain an action of replevin without having previously registered in compliance with the Act of April 22, 1874, P. L. 108.

      Bailment — Lease of chattel — Action.

      2. In an action of replevin to recover a chattel leased under a bailment, where it appears that the defendant has failed to pay the rental provided by the contract, the defendant cannot set up as a defense that the chattel was not what it was warranted to be.

      Replevin — Set-off—Action.
    3. A set-off is not admissible in an action of replevin.
    Argued March 9, 1910.
    Appeal, No. 36, March T., 1910, by defendant, from order of C. P. Lackawanna Co., May T., 1909, No. 308, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Hall’s Safe Company v. Mathies Walenk.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Replevin for a safe.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

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

      Alton A. Vosburg, with him Chas. W: Dawson, for appellant.
    — Compliance with the Act of April 22, 1874, P. L. 108, is a condition precedent to the lawful transaction of business in Pennsylvania by a foreign corporation, and without such compliance its engaging in business herein is utterly unlawful and can give rise to no rights the company can enforce in the courts of the state: Eastman on Corp., sec. 623; Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Thorne v. Travelers’ Ins. Co., 80 Pa. 15; Steel Tube Co. v. Riebl, 9 Pa. Superior Ct. 220; Milsom Rendering, etc., Co. v. Kelly, 10 Pa. Superior Ct. 565; Liebig Mfg. Co. v. Hill, 7 Pa. Superior Ct. 15; Wolff Dryer Co. v. Bigler & Co., 192 Pa. 466; Von Steuben v. R. R. Co., 178 Pa. 367; Johnson v. Hulings, 103 Pa. 498; Del. River Quarry, etc., Co. v. Ry. Co., 204 Pa. 22; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727 (5 Sup. Ct. Repr. 739).
    An affidavit of defense averring that the signing of a contract was secured by false representations, is sufficient: Hewitt v. Altick, 15 Lanc. L. R. 240; Lake v. Weber, 6 Pa. Superior Ct. 42; Smalley v. Morris, 157 Pa. 349.

      Fred E. Beers, with him R. Louis Grambs, for appellee.—
    The plaintiff is entitled to be confronted with averments which are sufficiently definite to designate the defense relied upon by the defendant: Wile & Brickner Co. v. Onsel, 10 Pa. C. C. Rep. 659; Woolverton v. Smith, 4 W. N. C. 442; Black v. Halstead, 39 Pa. 64.
    A foreign corporation, though not. registered in Pennsylvania, may maintain an action in replevin .for. the recovery of its property: Berry Hill Mineral Spring Co. v. Pile, 35 Pa. C. C. Rep. 354; Wolff Dryer Co. v. Bigler, 192 Pa. 466; Construction Co. v. Winton, 208 Pa. 467; Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184; Mearshon & Co. v. Lumber Co., 187 Pa. 12; Com. v. Simons, 3 Pa. Dist. Rep. 792; Standard Oil Co. v. Com., 101 Pa. 119; Com. v. Bell Telephone Co., 129 Pa. 217; Kilgore v. Smith, 122 Pa. 48.
    A foreign corporation, though not registered in Pennsylvania, may maintain an action in replevin for the recovery of its property: Berry Hill Mineral Spring Co. v. Pile, 35 Pa. C. C. Rep. 354; Wolff Dryer Co. v. Bigler, 192 Pa. 466; Construction Co. v. Winton, 208 Pa. 467.
    April 18, 1910:
   Opinion by

Henderson, J.,

This is an action of replevin. The plaintiff’s claim is based on a contract executed by the defendant in which the latter agreed to lease a certain safe according to the terms set forth in the contract. The plaintiff’s title is not denied in either of the affidavits of defense filed. The right of recovery is disputed, however, on three grounds: (1) that the plaintiff is a foreign corporation engaged in business in Pennsylvania without being registered as required by the Act of April 22,1874, P. L. 108; (2) that the safe was not of the land and quality represented by the plaintiff’s agent; and (3) that the defendant is entitled to set off against the plaintiff’s claim the value of an old safe given in part payment for the new one. As to the incapacity of the plaintiff to maintain the action it is alleged in the original affidavit of defense that “The plaintiff is a foreign corporation organized under the laws of the state of Ohio, and is and has been doing business in the State of Pennsylvania without having been registered in this State as foreign corporations are required to be under the laws of the Commonwealth of Pennsylvania.” In the supplemental affidavit the averment is that “ the plaintiff corporation had offices and places of business in the State of Pennsylvania for several months prior to the time when the transactions-between himself and the representative of the plaintiff company took place, during which time they were engaged, in business in the State of Pennsylvania, without having complied with the Act of Assembly and not having registered as required by law.” The first affidavit is defective in the failure to set forth the character of business carried on by the plaintiff in Pennsylvania. The allegation is the opinion merely of the defendant and not a statement of the facts from which the court could determine whether the plaintiff was violating the statute in respect to registration. In a sense every foreign corporation which through its agents is selling goods within the state is doing business therein. Many such corporations are largely engaged in business in that way but this is not doing business within the meaning of the statute. Only such corporations as have established offices or transferred a portion of their capital to this state and have engaged in the prosecution of their ordinary business therein are subject to the obligation to register. Hence, the importance of setting forth the character of the business transacted. Moreover, if there were a sufficient averment that the plaintiff was at some time engaged in the prosecution of business within this state in violation of the act it is not alleged that the transaction out of which this litigation arises had any connection with that business. The pleadings exhibit a written application of the defendant to the plaintiff for the safe and the delivery of the same to the defendant. Nothing appears on the record to show that the contract was executed in Pennsylvania. On the contrary, the defendant’s application appears to have been addressed to the company at its office, No. 393 Broadway, New York City, and was given subject to the approval of the company from which it might be inferred that the contract was completed in New York and not in Pennsylvania, and that there was no business transacted in this state. We are not to assume that the plaintiff violated the law as it had a right to take orders for goods in this state through agents or directly from customers without having previously registered under the act. The burden is on the defendant to show that the conduct of its business in this state subjected it to the disability provided by the statute. This is not done by the general averment that the plaintiff had offices and'places of business in this state for “several months prior to the time when the transactions between himself and the representative of the plaintiff company took place.” Where it had its places of business, what the business was and when it was transacted are not made to appear. As to the second matter of defense it may be said that the question here is one of title. If the safe received by the defendant did not correspond with the description as to size and quality given by the plaintiff or its representative the defendant was not bound to receive it or to retain it. But conceding the fact to be as alleged by the defendant that did not change the title and as he has confessedly failed to make payments in accordance with the terms of the contract he cannot be allowed to keep the property because it is not just what the plaintiff agreed to lease to him. Moreover, the description of the safe is set forth in the writing signed by the defendant and it is not stated that what he got is not the thing described in the contract. The contract, too, expressly declares that “it embodies all agreements made between us and all claims of verbal agreement of any nature not embodied herein are waived.” To this agreement the defendant attached his signature and seal. What he now proposes to set up is a variation of this written agreement without any averment of fraud, accident or mistake and this he is not permitted to do. It is sufficient to say of the third ground of defense that a set off is not admissible in an action of replevin: National Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582. The old safe was delivered to the plaintiff in accordance with the contract and whatever its value may have been or'whatever equity may exist in favor of the defendant the plaintiff’s right to recover in this action is not affected thereby. The learned judge of the court below reached the correct conclusion in the clear opinion filed.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Commonwealth v. Rossi, Appellant.

      Liquor laws — Sale without license — ■Evidence—Question for jury.

    1. On an indictment for selling liquor without a license the case is for the jury where the evidence for the commonwealth tends to show that the defendant took orders for beer, which he bought himself, and that it was delivered to .his customers by a driver employed by himself; and this is so although the defendant testifies that he was merely acting as an agent for a brewery, and that the driver who delivered the beer was acting independently of himself.
    2. On the trial of an indictment for selling liquor without a license there .was evidence that the defendant set before a witness two bottles of beer, and when asked how much they were, he said “Nothing,” and that subsequently he set before the same witness two bottles of beer and that the latter laid down ten cents and walked out. There was no evidence of any previous arrangement between the defendant and • the witness that the latter was to get the beer and pay for it. There was also no evidence of any other occurrence of a.similar kind, or that the place where it did occur indicated that a liquor business was carried on in it. Held, that it was reversible error for the court to instruct the jury that they were at liberty to infer that the beer was delivered pursuant to a prior arrangement.
    Argued March 14, 1910.
    Appeal, No. 31, Oct. T., 1910, by defendant, from judgment of Q. S. Huntingdon Co., Dec. T., 1909, No. 7, on verdict of guilty in case of Commonwealth v. Louis Rossi.
    Before Rice, P. J., Henderson, Orlady, Head and Porter, JJ.
    Reversed.
    Indictment for selling liquor without a license. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court charged in part as follows:
    There is no license granted to anyone to sell liquors in the borough of Mount Union.
    This defendant, the evidence shows, resided .last summer and for the last year or two, in the borough of Mount Union. The commonwealth offers a number of witnesses. One of them, Oliver Christ, testifies that some time during the month of last July he went to the defendant and paid him $2.00, for which he was to receive two kegs of beer. He tells you how he paid it; and that in a day or two another person by the name of Tony somebody, you will remember, delivered the beer to him. Mr. Paule Shugarts says that he was along with Mr. Christ when he paid the defendant the $2.00 and ordered the two kegs of beer; and he tells you he paid it. One, Mr. Condross, says that he got $8.00 worth of beer and that he paid the defendant for it and that it was delivered in two or three days by this man Tony. Mr. Charles Deeters testifies that he went there at one time (and the defendant set out four bottles of beer; that he drank two and the defendant drank two; that no consideration passed; that he went back again a little later and the defendant handed out two bottles of beer, and he laid down ten cents and walked out; that the defendant had walked into another room. Gentlemen of the jury, this is in brief the evidence on the part of the commonwealth.
    Mr. Wunder takes the stand and testifies that the defendant is the agent and has been acting as agent for the Oswald Brewing Company, doing business in Altoona, and that the defendant, Louis Rossi, simply took the orders; that the beer was then sent on the orders given to the brewing company by Rossi to the parties whose names appeared on the orders. He also testifies that Tony is in the employ of the brewing company, acting as the brewing company’s agent. Mr. Wunder also testifies that each consignment of beer is marked for one Hamilton and across the face of the label or tag is written the name of the person who actually paid for and was to receive the beer. [On rebuttal Mr. Christ testifies that when he received his beer his name was not on it, that Mr. Hamilton’s name was the only name on it and in this he contradicts the testimony on the part of the defendant.] [2]

      Now, gentlemen of the jury, as has been said by our Supreme Court, “The devices to evade this law are so numerous and so adroit, and the consequence of its violation are so serious to the welfare and good order of the community generally, that we think it is the duty of the courts to enforce the law rigidly. It is needed that all those who engage in this traffic in violation of law should know that the way of the transgressor is hard.” This is quoted from a decision of the Supreme Court in a recent opinion by Judge Oklady of the Superior Court.
    Now, gentlemen of the jury, if you believe the testimony on the part of the commonwealth that these orders were given to Louis Rossi, and Louis Rossi was the agent for the brewery, and that Tony was acting independently of Louis Rossi and delivered the beer independently of Louis Rossi, then we say the defendant could not be found guilty from these sales. [But if you believe that this order was given to Rossi and Tony was acting as his agent and the goods were shipped to Hamilton and not consigned to the witness Christ then he would be guilty on that sale.] [3] [There is no evidence here to show that the beer delivered this man Condross was an illegal sale unless you believe that Tony was acting as the agent of Louis Rossi and delivered it to Condross as the agent of Rossi and not as the agent of the brewing company.] [4]
    [Now, gentlemen of the jury, you are to scan all the evidence very closely, the evidence of Charles Deeters, who testifies that he went in there and paid this ten cents for the beer-
    Mr. Petriken: It seems to me that the court should not use the word “paid”; that word was not used in the testimony.
    The Court: Gentlemen of the jury, I say to you that, it was in law a payment, if you believe there was an arrangement made between the defendant and Deeters for Deeters to get the beer in this way. If you believe there was an arrangement made between the defendant and Deeters that Deeters was to get this beer and pay for it, then it was a payment, whether Rossi was there or was not there. As we have already quoted, “The devices to evade this law are so numerous and so adroit, and the consequences of its violation are so serious to the welfare and good order of the community generally, that we think it the duty of the court to enforce the law rigidly;” and in charging you that way we are simply enforcing the law as directed by the higher courts. The whole United States to-day seems to think that all those who engage in this liquor traffic should know that the way of the transgressor is hard. Thése things are brought on themselves by those who engage in the liquor traffic if they do what is in violation of law; and, if you believe that an arrangement was made with Charles Deeters for the purchase of this beef and that this defendant took this ten cents for the beer after Deeters had gone out, you should find the defendant guilty.] [5]
    If you find the defendant guilty you say nothing about the costs. If you acquit the defendant you must make some disposition of the costs. The prosecutor is an officer of the law and you cannot place any of the costs upon him, but you can place the costs upon the defendant or upon the county of Huntingdon. [But before you acquit him, gentlemen of the jury, we say to you, you must scan this evidence carefully and if there was an effort to evade the law, you will find him guilty.] [6] If you have any reasonable doubt about this defendant’s guilt that doubt is for the benefit of the defendant, to work his acquittal; but that, doubt must arise fairly from the evidence.
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1) the entire charge of the court; (2-6) portions of charge as .above, quoting them, and (7) refusal of binding instructions for defendant.

      Harry W. Petrikin, for appellant,
    cited: Com. v. Guja, 28 Pa. Superior Ct. 58; Com. v. Hess, 148 Pa. 98; Com. v. Ginader, 148 Pa. 110.

      Wm. Wallace Chisolm and Charles C. Brewster, district attorney, for appellee,
    cited: Garbracht v. Com., 96 Pa. 449; Com. v. Leslie, 20 Pa. Superior Ct. 529; Com. v. Tynnauer, 33 Pa. Superior Ct. 604; Com. v. Holstine, 132 Pa. 357; North Wales Boro. v. Brownback, 10 Pa. Superior Ct. 227.
    April 18, 1910:
   Opinion by

Rice, P. J.,

The substance of the testimony of Oliver Christ, a witness for the commonwealth, was that he ordered from the defendant, and at the same time paid him for the same, two kegs of beer, which it was agreed between them should be delivered to him on a certain day, at a certain place, and that the beer was delivered to him on the day named by another person named Tony Giasacobella. On cross-examination he testified that after he had paid for the beer he signed his name to a paper which the defendant presented but this paper is not set forth nor is its substance given in the printed transcript of the evidence. There is nothing in the testimony of this witness or in the corroborative testimony of Paul Shugarts to indicate that the transaction was other than a personal transaction between the witness and the defendant.

The same is true of the testimony of Moxie Condross, which was to the effect that he ordered from the defendant and paid him for eight kegs of beer, and that they subsequently were hauled to his place by Giasacobella, who, he testified, was the defendant’s- driver. The defense, so far as these sales are concerned, was that the defendant was in the employ of a brewer in another county; that his authority was simply to solicit orders and make collections, not to deliver the beer; that he sent the orders with the money to his employer who, according to the testimony of another employee of the brewer, shipped the goods in this way: “These goods were shipped marked ‘G. W. Hamilton, Mount Union’ and across the face of the label was written the name of the parties whom the goods were for, and in that way the driver at Mount Union knew who the goods were for, in connection with the list sent to the driver.” This witness, as well as Giasacobella, testified that the latter was employed by the brewer. In rebuttal, the witness Christ testified that his name was not on the tag on the kegs delivered to him, but only the name G. W. Hamilton. It is argued that there could be no conviction for these sales because the deliveries were not made by the defendant. The foregoing review of the evidence shows that this contention rests on the assumption that the testimony adduced by the defendant must be taken for verity. The answer is that the commonwealth’s testimony, if believed, warranted the jury in finding that the agreements for the sales were made by the defendant personally, and in inferring therefrom and the other circumstances that the person, who hauled the beer to the place and at the times agreed upon, was the defendant’s employee or agent. This would be the natural inference in the absence of evidence to the contrary. Whether it was overcome by the evidence adduced by the plaintiff was a question which depended to a large extent, upon the credibility of the witnesses and was for the jury. The learned judge submitted the question to them as follows: “Now, gentlemen of the jury, if you believe the testimony on the part of the commonwealth (defendant) that these orders were given to Lousi Rossi, and Louis Rossi was the agent for the Brewery, and that Tony was acting independently of Louis Rossi and delivered the beer independently of Louis Rossi, then we say the defendant could not be guilty from these sales. But if you believe that this order was given to Rossi and Tony was acting as his agent and the goods were shipped to Hamilton and not consigned to the witness Christ then he would be guilty on that sale. There is no evidence here to show that the beer delivered this man, Condross, was an illegal sale unless you believe that Tony was acting as the agent of Louis Rossi and delivered it to Con-dross as the agent of Rossi and not as the agent of the Brewing Company.” The defendant has no just cause to complain of these instructions or of the fairness and adequacy of the charge relative to these sales: Com. v. Pollak, 33 Pa. Superior Ct. 600; Com. v. Tynnauer, 33 Pa. Superior Ct. 604; Com. v. Hecirrionic, 39 Pa. Superior Ct. 510. The first, second, third, fourth and seventh assignments are overruled.

The material part of the commonwealth’s testimony relative to the alleged sale to Deeter may be stated in his language: “I went there and asked him if he had any beer; he said he had some; he set out some beer on the table; I drank two bottles and he drank two, and I asked him how much and he said “nothing” .... “I came back a few days afterwards and asked him if he had any more. He set the beer out and I drank two bottles and laid ten cents down and walked out.” Upon cross-examination he was asked whether the defendant saw him leave, to which he answered “No, sir; he walked over in the other room.” This was not tantamount to saying that the defendant left the room before the witness laid down the ten cents. We cannot say that the testimony of this witness, taken as a whole, was insufficient to warrant the court in submitting to the jury the question whether the defendant delivered beer to the witness for which he accepted pay, and instructing them that if he did, there was an unlawful sale. But we think there was error in instructing them that if “there was an arrangement made between the defendant and Deeters, that Deeters was to get this beer and pay for it, then it was a payment whether Rossi was there or was not there.” The jury might well understand from this and other instructions in the same connection, that they were at liberty to infer that the beer was delivered pursuant to a prior “arrangement.” We discover no sufficient evidence to sustain that ■finding. There is certainly no direct testimony to that 'effect and in considering whether the circumstantial evidence was sufficient it is to be borne in mind that this was the first and only transaction of the kind that was shown in the case, and that there is no evidence that it occurred in a place having indications that such business was carried on in it. If there was such an arrangement Deeters must have known it but he was not asked to testify whether there was or not. Nor can we safely conclude, that the instruction was harmless, particularly when considered in connection with this instruction near the end of the charge: “But before you acquit him, gentlemen of the jury, we say to you, you must scan this evidence carefully and if there was an effort to evade the law you will find him guilty.” The learned judge was within his province when he admonished the jury that the devices to evade the liquor law are so numerous and so adroit and the consequences of its violation are so serious to the welfare and good order of the community generally, that it should be enforced rigidly. But, on the other hand, it is as essential in this class of cases as in others, that the evidence, and that alone, shall convince the jury beyond a reasonable doubt, that every element of a completed violation of the law exists in the case, before there can be a conviction. We cannot avoid the conclusion, that the ‘instructions to which we have alluded had a tendency to relax the well-settled rules which are for the protection of the accused. The fifth and sixth assignments of error are sustained.

The judgment is reversed and a venire facias de novo awarded.


author: Per Curiam,

text:
    Sebring v. Weaver, Appellant.

      Jury — Incompetency of juror — Membership in the same fraternal order.

    1. A juror is not incompetent merely because he and one of the parties-are members of the same religious denomination or fraternal order, where no interest pecuniary or otherwise of the denomination or order is involved in the action; much less is it ground for withdrawing a juror and continuing the case that in the examination of a witness for plaintiff the fact was incidentally developed that the plaintiff’s decedent was at a certain place at a certain time upon a Masonic meeting.

      Master and servant — Compensation for services — Quantum meruit— Evidence.

    2. Under a statement of claim alleging an oral agreement whereby plaintiff’s decedent was employed to do certain work for defendant, it not being alleged that the compensation-was expressly agreed upon, but it. being alleged that the services were reasonably worth a certain sum per day, it is competent to prove by a witness qualified to testify upon the subject what the services were worth.
    3. In such an action it is competent to put in evidence the field notes shown to have been made by the decedent in the surveying in question, as tending to show in connection with the oral testimony the extent and nature of the work done by him.

      Trial — Evidence—Cross-examination of witness — Discretion.
    4. The extent to which the cross-examination of a witness as to collateral matters may go for the purpose of testing his recollection and credibility, is largely within the discretion of the trial judge.

      Appeals — Assignments of error — More than one-point in assignment.

    5. An assignment of error is improper which refers to several exceptions taken during the course of the examination of a witness, and ■ raises more than one distinct question.
    Argued March 2, 1910.
    Appeal, No. 14, Feb. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1908, No. 338, on verdict for plaintiff in ease of Robert A. Sebring, Executor of the last Will and Testament of Francis T. Wilson, v. J. Hile Weaver.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for services.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $380.24. Defendant appealed.

      Errors assigned were various rulings on' evidence, instructions and refusal to withdraw a juror.

      John E. Cupp, with him Clarence E. Sprout, for appellant.

      W. C. Gilmore, for appellee.
    May 12, 1910:
   Per Curiam,

A juror is not incompetent merely because he and one of the parties are members of the same religious denomination or fraternal order, where no interest pecuniary or otherwise of the denomination or order is involved in the action: Purple v. Horton, 13 Wendell, 9. Much less was it-ground for withdrawing a juror and continuing the case that in the examination of a witness for plaintiff the fact was incidentally developed that the decedent was at a certain place at a certain time in attendance upon a Masonic meeting. As the counsel for the appellee well says, the question raised by the second assignment is not one that goes to the relevancy, admissibility or competency of testimony, but to the abuse of the discretion of the trial judge. There was plainly no abuse of discretion, therefore, the assignment is overruled.

Rule XIV provides that each error relied on must be assigned particularly and by itself, and that if any assignment embraces more than one point or refers to more than one bill of exceptions or raises more than one distinct question, it shall be considered a waiver of all the errors so alleged. The third assignment refers to several exceptions taken during the course of the examination of the witness Eldred, and these exceptions raise more than one distinct question. But treating the assignment as fairly bringing up for review the question raised by the first exception, namely, the admissibility of the testimony covered by the offer, we find no error of which the defendant can justly complain. Under a statement of claim as amended alleging an oral contract whereby the decedent was employed to do certain surveying for the defendant, it not being alleged that the compensation was expressly agreed upon, but it being-alleged that the services were reasonably worth a certain sum per day, it was competent to prove by a witness qualified, to testify upon the subject-what the services were worth.

In such an action it was competent to put in evidence the field notes shown to have been made by the decedent in the surveying in question, as tending to show, in connection with the oral testimony, the extent and nature of the work done by him. Indeed, they may be regarded as part of the work he was employed to do.

The extent to which the cross-examination of a witness as to collateral matters may go for the purpose of testing his recollection and credibility, is largely within the discretion of the trial judge: Commonwealth v. Racco, 225 Pa. 113. We cannot agree with the appellant’s counsel that that discretion was so abused in the present case that substantial injury resulted to the defendant.

, We do not deem it necessary to elaborate further. We think the case was well tried and properly submitted to the jury.

Judgment affirmed.


text:
    Penn Furniture Company v. Liberty Mutual Fire Insurance Company, Appellant.

      Appeals — Equity—Statement of errors — Quashing appeal.

    An appeal in an equity case will be quashed where the appellant has not filed in the court below a statement of errors with the notice of appeal as required by equity rule 92.
    Argued April 12, 1910.
    Appeal, No. 163, April T., 1910, by defendant, from decree of C. P. Crawford Co., Sept. T., 1909, No. 4, on bill in equity in case of Penn Furniture Company v. Liberty Mutual Fire Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Bill in equity to reform an insurance policy.
    The statement of the question involved was as follows:
    An insurance company issued its policy of insurance containing an eighty per cent re'duced rate average coinsurance clause. The insured declined to accept the policy containing said clause. The insurer thereupon canceled the eighty per cent clause when the insured accepted the policy and paid the premium. At expiration of the term of the policy the insurer issued a new policy •to the insured for a like 'term, amount and premium, containing the eigthy per cent reduced rate average coinsurance clause. The. insured received the second policy August 7, 1908, and paid the premium, $40.00, on December 24, 1908. On March 7, 1909, a loss by fire occurred. On April 7, 1909, proofs of loss were executed by the insured’s manager, who .was also secretary of the company, and were filed with the insurer. In the proofs of loss the insured claimed the sum of $473.14, the proportionate amount of the insurer’s share of the loss under the eighty per cent coinsurance clause in the policy. Some time after these proofs were filed the insured 'first requested the insurer to reform the policy by eliminating the eighty per cent coinsurance clause, and demanded payment on the basis of a full rate policy.
    1. Did the insured by its laches ratify the contract?
    2. Is the second policy a new and distinct contract between the parties?
    3. Should the policy be reformed?

      Error' assigned was decree refusing the bill.

      Otto Kohler, with him Clinton 0. Mayer, for appellant.

      E. Lowry Humes, for appellee.
    May 12, 1910:
   Per Curiam,

We are asked to dismiss the assignments of error and quash the appeal for the reason, inter alia, that the appellant did not file in the court below, with its notice of appeal, a brief statement of the errors it alleges to have been made by the decree appealed from, as required by equity rule 92. This rule was recently discussed in the opinion of our Brother Henderson in Groff v. City Saving Fund & Trust Co., 32 Pa. Superior Ct. 416, and the reasoning which led to the quashing of the appeal in that case applies equally well here. No sufficient reason has been suggested why the rule should not be enforced in the present, case. See also North v. Pantall, 197 Pa. 303; Wilson v. Keller, 195 Pa. 98; McMelley v. Williamson, 32 Pa. Superior Ct. 263. We sustain the motion with less reluctance because in the opinion of the majority of this court substantial justice was done by the decree complained of. We remark in addition that the manner in which the question involved is stated in the appellant’s paper-book is not in strict accordance with the rule upon that subj ect. But we sustain the motion for the reason first suggested.

The appeal is quashed at the costs of the appellant.


text:
    Trimble, Appellant, v. Reserve Township.

      Appeals — Record—Evidence—Taxation of costs.

    An order of the common pleas dismissing exceptions to the prothonotary’s retaxation of costs will be affirmed unless the record exhibits an error of law in the conclusions reached or irregularity of procedure. As the evidence is not brought up with the record, matters of fact cannot be considered.
    Argued April 14, 1910.
    Appeal, No. 47, April T., 1910, by plaintiff, from order of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 907, dismissing exceptions to taxation of costs in suit of John G. Trimble v. Reserve Township.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to taxation of costs.

      Error assigned was in dismissing the -exceptions.

      F. C. Whitesell, of Whitesell Bros., for appellant.

      J. L. Ritchey, with him A. B. Angney, for appellee.
    May 12, 1910:
   Per Curiam,

This is an appeal from an order of the Common Pleas dismissing exceptions tó the'prothonotary’s retaxation of costs. Unless the record brought up on such appeal exhibits error of law in the conclusions reached or irregularity of procedure, the adjudication will not be disturbed: Hartley v. Weideman, 28 Pa. Superior Ct. 50, and cases there cited. As was there said, if the adjudication relates to the number and materiality of the witnesses in attendance, the length of time they were in attendance, the number of miles traveled by them or by the officer or other person serving the subpoena, or the number of days arbitrators were engaged in the performance of their duties, and similar matters of fact, it is ordinarily conclusive and not reviewable on appeal, for the obvious reason that the evidence upon which it was based is not brought up with the record. There is nothing in this case to take it out of the general rule. Finding no error of law or irregularity of procedure in the record, the order is affirmed at the costs of the appellant.


text:
    Hughes v. Cooper, Appellant.

      Appeals — Equity—Quashing appeal.

    An appeal in an equity case will be quashed where the appellant does not comply with rules VII and XIII of the Superior Court and equity rule 92.
    Argued April 28, 1910.
    Appeal, No. 128, April T., 1910, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1909, No. 810, overruling motion to dismiss bill in equity in case of Thomas M. Hughes and Frank Hughes v. Samuel Cooper.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Bill in equity for an injunction. Before MacFarlane, J.
    The opinion of the Superior Court states the case.

      Error assigned was in the following form:
    “The court erred in overruling the motion to dismiss the bill and dissolve the injunction.”

      Joseph R. Conrad, with him A. E. Eckles, for appellant.

      Ed. J. Gamón, with him Kennedy, McVicar & Hazlett, for appellees.
    May 12, 1910:
   Per Curiam,

The matter complained of on the argument of this appeal was the overruling of the defendant’s motion to dismiss the bill and dissolve the preliminary injunction because of the plaintiff’s failure to file and serve printed copies of the bill within twenty days after the filing of the original bill, as required by rule 14 of the equity rules. It was suggested on the argument that this was not such an order as may be appealed from before final decree. We need not pass on that question, nor need we discuss the question whether the court was in error in not enforcing the equity rule we refer to, because the defendant’s motion to quash the appeal for noncompliance on the part of the appellant with rules VII and XIII of this court and equity rule 92 must prevail.

The appeal is quashed at the costs of the appellant.


author: Head, J.,

text:
    Hoskins, Appellant, v. Peoples.
    Argued Dec. 17, 1909.
    Appeal, No. 221, Oct. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1907, No. 2,276, refusing to take off nonsuit in case of Robert J. Peoples, Andrew Peoples and David Peoples, co-partners, trading as Peoples Brothers.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.

      Error assigned was refusal to take off nonsuit.

      Ruby R. Vale, for appellant.

      Henry H. Farley, with him Edward B. West, for appellees.
    May 12, 1910:
   Opinion by

Head, J.,

The injury for which the plaintiff here seeks to recover resulted from the same accident, the details of which we have fully stated in the kindred case of Atwood B. Hoskins v. the same defendants, in which an opinion has this day been filed, ante, p. 000. The plaintiff in that case was the owner of the horse which had to be killed as a consequence of the injuries it sustained. The present plaintiff was the owner of the buggy and harness used on that occasion, and brings this action to recover damages for the injury sustained by his property resulting from the alleged negligent act of the defendants.

The cases were tried in different courts with different results. In the present case the learned trial court entered a compulsory nonsuit, which he afterwards refused to take off, and the plaintiff appeals. Whilst the oral testimony in this case is even less in volume than in the former one, yet it is the same in quality and substance, and was sufficient we think to have required the submission of a question of fact to the jury under proper instructions. The nature and scope of such instructions were fully set forth in the previous opinion wherein we indicated the line of reasoning that led us to the conclusion we'reached.

It is not necessary here to repeat or elaborate what we there said. The application to the present case of the same reasoning previously adopted requires us to hold that the learned judge below fell into an error in refusing to submit the case to the jury.

Judgment reversed and a venire facias de novo awarded.


author: Orlady, J.,

text:
    Commonwealth v. Griffin, Appellant.

      Criminal law — Burglary—Larceny—Proof as to other offenses— Identity.

    1. To make one criminal act evidence of another some connection must exist between them; that connection must be traced in a general design, purpose or plans of the defendant or may be shown by such circumstances of identification as necessarily tend to establish that the person who committed one, must have been guilty of the other.
    2. On the trial of two persons jointly indicted for burglary and larceny, one of them who pleads'guilty may testify as to other offenses of a similar kind committed practically in the same place within a short and defined period of time, indicating a common purpose between the witness and the codefendant, and also that the codefendant gave his sanction to the crimes and shared in part in the spoils by acting as a depository of the goods stolen by the other.

      Criminal law — Charge—Good character.

    3. On the trial of a criminal indictment it is not error for the court to charge as to good character as follows: “Of course all persons have at some time been persons of good character, and many defendants-in courts of justice, up to the time of the commission of the offense of which they are convicted, had a good character, and you will take this into consideration when you come to determine upon the weight and applicability of the testimony as to the good character of the defendant.
    Argued Dec. 10, 1909.
    Appeal, No. 24, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1909, No. 104, on verdict of guilty in case of Commonwealth v. Edward Griffin et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for burglary and larceny. Before Halsey, J.
    The court admitted under objection and exception evidence as to other offenses committed in the same neighborhood and about the same time. Testimony was admitted for the purpose of establishing identity, showing the willful and not accidental character of the act, to show a motive and guilty knowledge, and to rebut any inference of mistake.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were rulings on evidence and the portion of the charge quoted in the opinion of the Superior Court.

      Frank A. McGuigan, for appellant.
    — One crime cannot be introduced as evidence of another separate and unconnected offense: Shaffner v. Com., 72 Pa. 60.

      Evan C. Jones, assistant district attorney, with him Abram Salsburg, district attorney, for appellee.
    — Where the offense on trial, and the independent offense sought to be proven, are so connected, as to show motive, guilty knowledge, a distinct purpose, a combination to commit crimes, or a system on the part of the defendant alone, or with others, evidence may be given of such independent crime: Com. v. Ferrigan, 44 Pa. 386; Shaffner v. Com., 72 Pa. 60; Turner v. Com., 86 Pa. 54; Kramer v. Com., 87 Pa. 299; Goersen v. Com., 99 Pa. 388; Com. v. Johnson, 133 Pa. 293; Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Hutchinson, 6 Pa. Superior Ct. 405.
    The charge as to character was improper: Com. v. King, 35 Pa. Superior Ct. 454; Com. v. Belserawitz, 35 Pa. Superior Ct. 77; Com. v. Brubaker, 13 Pa. Superior Ct. 14.
    April 28, 1910;
   Opinion by

Orlady, J.,

Edward Griffin and John Russ were jointly indicted for breaking into and entering a building with intent to commit a felony therein and also for larceny of goods in the building. At the time of the trial, Griffin pleaded guilty and he was used by the commonwealth as a witness to secure the conviction of Russ, this appellant. Griflin had committed a number of burglaries in Scranton and Wilkes-Barre, and it was alleged by the commonwealth that Russ was. identified with these undertakings — if not directly participating in them, at least with having knowledge of them and profiting by a division of the spoils.

The first four assignments of error complain of the admission of the testimony of Griffin, which was received, as stated by the court: “We have permitted to be introduced into this case, testimony of other offenses alleged to be committed; they were not admitted for the purpose of proving the offense or offenses in this case which are burglary and larceny, but for the purpose of establishing identity; of showing that the act charged was intentional and willful, and not accidental; of proving motive; of showing guilty knowledge and purpose and to rebut any inference of mistake.”

The offenses to which reference was made by Griffin, in his examination, were similar in kind and purpose to the one laid in this indictment; they occurred practically in the same place, within a short and defined period of time, and were evidently committed by the same person, and indicated a common purpose between the confessed thief and this defendant and also that this defendant gave his sanction to the crimes and-shared in the spoils of at least two of them, by acting as the depository of the goods stolen by Griffin. To make one criminal act evidence of another, some connection must exist between them: that connection must be traced in the general design, purpose or plans of the defendant, or may be shown by such circumstances of identification as necessarily tend to establish that the person who committed one, must have been guilty of the other. The collateral or extraneous offense must form a link in the chain of circumstances, or proofs relied upon for a conviction; as an isolated or disconnected fact is of no consequence; the defendant cannot be convicted of the offense charged simply because he is guilty of another offense .... yet, under some circumstances, evidence of another offense by the defendant may be given. Thus it may be to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive; to show guilty knowledge and purpose, to rebut any inference of mistake; .... to show him to be one of an organization banded together to commit crimes of the kind charged, and to connect the other offense with the one charged, as part of the same transaction. This in substance is the language of Hester v. Com., 85 Pa. 139; Brandt v. Com., 94 Pa. 290; Com. v. Bradley, 16 Pa. Superior Ct. 561; Com. v. Levinson, 34 Pa. Superior Ct. 286; Com. v. Campolla, 28 Pa. Superior Ct. 379; Goersen v. Com., 99 Pa. 388; Com. v. House, 6 Pa. Superior Ct. 92.

The fifth assignment raises the only other question entitled to consideration. . In the charge to the jury, the learned trial judge said: Of course, all persons have at some time been persons of good character, and many defendants in courts of justice, up to the time of the commission of the offense of which they are convicted, had a good character, and you will take this into consideration when you come to determine upon the weight and applicability of the testimony as to the good character of the defendant. In the light of the general charge, we do not feel that this language was misleading. The defendant denied his guilt, and called a number of reputable citizens to testify as to his good character, and conceding all that is urged by the defendant’s counsel against this statement by the trial judge, we do not feel that it is any more objectionable than the charge of the court in Com. v. King, 35 Pa. Superior Ct. 454, which was held to be not erroneous. Similar or equivalent language was used in Com. v. Brubaker, 13 Pa. Superior Ct. 14; Com. v. Belserawitz, 35 Pa. Superior Ct. 77, but in this as in those cases, we feel that taking it as a whole, the facts were fairly submitted to the jury in such a manner as to give them a proper understanding as to what effect they should give to the testimony adduced by the defendant in support of his previous good reputation.

The assignments of error are overruled and the judgment is affirmed.


author: Beaver, J.,

text:
    Raymond Brothers Impact Pulverizing Company, Appellant, v. Pennsylvania Black Filler & Paint Company.

      Sale — Warranty—Rescission—Remedy—Damages—Measure of damages.

    In an action to recover the price of machinery sold under a warranty, the defendant may give evidence as to the failure of the machinery to meet the warranty, although the contract provided a remedy by rescission by the defendant and a return of the machinery and portion of purchase money paid, if it appears that the defendant had previously declined to avail himself of the remedy by rescission. In such a case the measure of damages is the difference between the value of the machinery warranted and the real value.
    Argued March 2, 1910.
    Appeal, No. 9, Feb. T., 1910, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 2908, No. 360, on verdict for plaintiff in case of Raymond Brothers Impact Pulverizing Company v. The Pennsylvania Black Filler & Paint Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover balance alleged to be due for machinery. Before Ormerod, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $220. Plaintiff appealed.

      Error assigned among others was in overruling plaintiff’s motion for judgment non obstante verdicto.

      M. C. Rhone, with him A. R. Jackson, for appellant.—
    Where a contract provides a remedy in case of a breach thereof the parties thereto are bound to resort to that remedy: Harrisburg Car Mfg. Co. v. Lochiel Rolling Mill Co., 4 Penny. 186; Bradley v. R. R. Co., 36 Pa. 141.

      W. C. Gilmore, for appellee.
    — Appellee contends that rescission, followed by reshipment of machinery, etc., was not its sole remedy: Harrisburg Car Mfg. Co. v. Rolling Mill Co., 4 Penny. 186; Bradley v. R. R. Co., 36 Pa. 141; Seigworth v. Leffel, 76 Pa. 476.
    There was sufficient evidence of damages, from breach of the guaranty, properly submitted to the jury, to justify a verdict reducing the claim: Seigworth v. Leffel, 76 Pa. 476; Himes v. Kiehl, 154 Pa. 190.
    April 28, 1910:
   Opinion by

Beaver, J.,

Plaintiff sold to defendant certain machinery for grinding and pulverizing slate for filler. The contract price was $1,750, one-half of which, in accordance with the terms of the contract, was paid when the machinery was received. Five hundred dollars was subsequently paid on account, and there was claimed, in addition to the original purchase price of the machinery, $9.84 for parts which had been furnished. As to the last item there was no dispute and appellant brought suit for the amount of its claim — $384.84. The defendant claimed as a set-off to this balance damages arising, as was claimed, under a warranty contained in the original contract as follows: “When properly erected and operated, we will guarantee the above, plant to grind your black slate, as per sample submitted to the fineness of the sample sent us, at the rate of six hundred (600) pounds per hour; said slate to be reasonably dry and properly crushed for feeding to the mill. ... In case you so desire, we will furnish you an expert millwright to superintend the erecting and testing of the plant for the sum of five (5) dollars per day, plus his traveling expenses and board from the time he leaves Chicago until his return. Should our expert fail to make the plant work as above guaranteed, within a reasonable time, we will refund purchase money paid; you to place the machinery on board car subject to our order, each releasing the other from all further obligations.”

Defendant continued to use the mill, making no effort to rescind the contract, paid $500 on account, while it was in use, but alleged that the terms of the warranty of the plaintiff that it would grind 600 pounds per hour of the required fineness had not been met.

In a letter written by the defendant to the plaintiff, after specifying the certain errors made by the plaintiff and the failure of the machinery to do the amount of work guaranteed by it to be done per hour, it is said: “Now, if you think you can make us pay the balance due on these grounds, that is your privilege.”

After further efforts on the part of the plaintiff and some negotiation, suit was brought, and on the trial the offer was made to show that the terms of the warranty of the plaintiff had not been met.

The plaintiff asked for binding instructions for the full amount of its claim, which were refused, and a verdict having been rendered in favor of the.plaintiff for $220, a motion was made for judgment for the full amount non obstante veredicto, which was also refused. These refusals constitute the errors complained of.

The plaintiff now complains that the defendant should not have been allowed to give evidence as to the failure of the machinery to meet the requirements of the warranty of the plaintiff, because there was a special remedy provided in the contract, namely, a rescission by the defendant, a return of the purchase money so far as paid by the plaintiff and the shipment by the defendant of the machinery to the plaintiff. The answer to that seems to us to be very simple. The plaintiff, without demanding a compliance with the terms of the contract, brought suit. Defendant having previously declined to rescind could only secure a reduction in price by showing .that the machinery was insufficient to do the work which by the terms of the warranty the plaintiff stipulated could be done.

Seigworth v. Leffel et al., 76 Pa. 476, seems to us to be directly in point. Mr. Justice Shaeswood, in delivering the opinion of the court, said: “This was an action instituted in the court below to recover the contract price of three turbine wheels known as ‘Leffel’s improved turbine wheel.’ The defense set up was that the plaintiffs had warranted the wheels to do more work than a 24-feet overshot, and a breach of the warranty. Of this some evidence was given. It was also testified by witnesses on the part of the defendants, that they had reserved the right to rescind the contract in case the warranty was broken — in the words of'the witnesses, that if it did not perform as warranted, the plaintiffs would take the wheels back and refund the money, and pay all expenses and damages. There was no evidence, however, that the right of rescission had ever been exercised. The defendants might have taken the wheels out or given notice to the plaintiffs to take them away. So far from this, it fully appeared that the defendants had continued to use the wheels, without giving any notice of rescission. Under these circumstances, all that the defendants could claim was to set off against the plaintiffs’ demand the damages recoverable on breach of the warranty. In such a case the measure of damages is well settled to be the difference between the value of the articles as warranted and the real value or market price: Sedgwick on Damages, 290; Borrekins v. Bevan, 3 Rawle, 23; Stetson v. Croskey, 52 Pa. 230. It was settled in Cothers v. Keever, 4 Pa. 168, that the contract price does not enter into the question as a rule of measurement. In that case, which was an action to recover damages on the warranty of a horse, it was held that the true measure was the difference between the value of the horse, if he had been sound as warranted, and his value in the diseased state. The reason is a conclusive one; if the vendee made a bad bargain, he is not to be reimbursed what he lost by his simplicity as damages for a breach of warranty.

“Here, for example, the price claimed for these improved turbine wheels may have been more than their real value, and the rule as laid down by the learned judge below would have been erroneous, had there been any evidence in the cause of their real value as warranted other than the contract price. In the absence of any such evidence, as.against the plaintiffs, the contract price must prima facie be presumed to be the real value, and it is a rule to which the defendants in this case have no right to object.”

This case was subsequently referred to with approval in Himes et al. v. Kiehl et al., 154 Pa. 190.

The contract price of the machinery being the prima facie value of it, how much less was it worth to the defendant by reason of the failure to meet the requirements of the plaintiff’s warranty? We think the instructions of the court were entirely correct as to this question, that the plaintiff’s point, asking for instructions for the full amount of the balance, was properly refused and the motion for judgment non obstante veredicto for the whole amount of the claim instead of the amount awarded by the jury in their verdict, was also properly refused.

Judgment affirmed.


text:
    Bolton v. Central Trust & Savings Company, Appellant.

      Contract — Construction—Work to be satisfactory to another.

    1. Where one party contracts to perform certain work to the satisfaction of another it is to the judgment of the latter he submits the question whether or not the work has been done according to the contract. The judgment, however, contemplated by the rule must be reached honestly and in good faith. It cannot be the result of mere whim or caprice, or a subterfuge to avoid the payment of money really due; much less can it be the offspring of any collusion or fraud.
    2. Where a contractor agrees to plaster fifty-four houses to the satisfaction of the owner and his guarantor, and the latter receives from the owner money sufficient to pay the plasterer, and payments are made from time to time without any expression of disapproval of the work, and the last payment is refused by the guarantor on the ground of insufficiency of funds, the case is for the jury to determine whether or not the dissatisfaction with the work shown by the guarantor at thé trial is not a mere subterfuge to relieve the guarantor from the obligation to pay.
    Argued Oct. 11, 1909.
    Appeal, No. 57, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1907, No. 4,258, on verdict for plaintiff in case of John G. Bolton et al., trading as John G. Bolton & Sons, v. Central Trust & Savings Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a building contract. Before Moschzisker, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $236.50. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant, and (2) in refusing judgment for defendant non obstante veredicto.

      J. Hector McNeal, for appellant.
    — It is well settled in Pennsylvania that while work done under a contract which stipulates that it shall be satisfactory to one of the parties, cannot be rejected from mere caprice, still a bona fide rejection is a good defense to an action thereon, and it is insufficient to show that such party ought to have been satisfied: Meacham v. Gardner, 27 Pa. Superior Ct. 296; Kennedy v. Poor, 151 Pa. 472; Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501; Payne v. Roberts, 214 Pa. 568; Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69; Howard v. Smedley, 140 Pa. 81.

      Frederick J. Shoyer, for appellee,
    cited: Hartupee v. Pittsburg, 97 Pa. 107; Malone v. City, 12 Phila. 270; Whelen v. Boyd, 114 Pa. 228; Terra Cotta Co. v. Sharp, 7 Pa. Dist. Rep. 544; Kennedy v. Poor, 151 Pa. 472; Hebert v. Dewey, 77 N. E. Repr. 822.
    May 12, 1910:
   Opinion by

Head, J.,

Neither at the trial nor upon the argument of this appeal did the plaintiffs attempt to deny the existence of the rule of law which declares that where one party contracts to perform certain work to the satisfaction of the other, it is to the judgment of the latter he submits the question whether or not the work has been done according to the contract. The learned trial court recognized and emphasized this rule in his charge, and of his instructions to the jury there is no complaint. But the usefulness, nay the very existence of the rule, depends upon the recognition and enforcement of its manifest limitation. The judgment contemplated by the rule must be reached honestly and in good faith. It cannot be the result of mere whim or caprice, or a subterfuge to avoid the payment of money really due; much less can it be the offspring of any collusion or fraud.

Clearly then, where the existence of such an honest judgment becomes the sole issue between the parties — as it is in this case — the proper determination of that issue cannot always be permitted to rest on the bare declaration of the party himself. In the trial of an indictment for murder the state seeks to ascertain the intent with which the fatal blow was struck. To hold it concluded by the statement of the prisoner would convert a solemn trial into a farce. The location and character of the wound inflicted, the nature of the weapon selected, the time, place and circumstances of the occurrence must all be considered. If the inferences reasonably deduced from these will not square with the prisoner’s declaration as to his state of mind, the jury would clearly be warranted in rejecting such declaration.

So here, if an examination of the acts of the parties and their attitude towards each other, during the entire contract period covering many months, will fairly support the inference reflected in the verdict, the learned trial court was right in submitting the question to the jury under proper instructions, and the single contention of the defendant has no substantial foundation on which it can rest.

The plaintiffs had contracted to furnish the material and do the work necessary to plaster fifty-four two-story brick dwelling houses in the city of Philadelphia for one Myers, in a good and workmanlike manner according to certain drawings, plans and specifications, and to the satisfaction of the said owner. The latter in turn contracted to pay to the plaintiffs, in proportionate weekly payments as the work progressed, the sum of $3,402. The contract provided that the specifications were to be deposited with the Central Trust & Savings Company, the present defendant; that the work should be prosecuted with such force of workmen “as shall be satisfactory” to Myers or the company. If, in the opinion of either, there was a failure in this respect, after notice to the plaintiffs, a summary remedy was provided. No charge for extra work could be allowed unless agreed to in writing signed by Myers and approved by the company; nor could the contract be assigned without the written consent of both. Thus it will be seen that the rights and powers reserved in the original contract to the present defendant indicate that it had a real and substantial interest in the improvement. The company then executed and delivered to the plaintiffs a written undertaking to guarantee to the plaintiffs the payment of the said sum of $3,402, when and as the said amounts might become due and payable, under the terms of the contract already referred to upon vouchers signed by the said Myers and upon the approval of the lathing and plastering by said company.

Our common experience in such matters teaches us that in the performance of such a contract the plaintiffs would not undertake to entirely complete the work upon one house before beginning another. As the work then would ordinarily be done, the character of the payments provided for in this contract would give both to the owner and to the defendant, acting for him, abundant opportunity to inspect and determine the quality of the work as it progressed.

Leaving aside for the moment certain matters as to which the testimony is in conflict and looking only to the evidence adduced by the plaintiffs, the jury would be warranted in’ finding that the work done measured up to the requirements of the contract; that as it progressed vouchers were regularly made out by the owner and delivered to the plaintiffs, and. that upon presentation of these vouchers the money called for in them was paid over by the defendant; that in this way twenty-one separate vouchers aggregating the sum of $3,182 had been delivered to the plaintiffs and the corresponding amounts of money paid to them. This left but a balance of $220 due to them under the contract. Each one of the vouchers referred to was, not only in legal effect but in actual form, a certificate, both by the owner and the defendant, that the work had been duly inspected as it progressed; that it conformed with the requirements of the plans, specifications and contract, and that the money therein called for was actually due to the plaintiffs. When the work had been completed and the last voucher for the final balance was demanded, the owner refused to furnish it. The testimony of the plaintiffs is that even then he did not claim that his refusal to sign the voucher was because of any act or default on the part of the plaintiffs. They testify that sometimes he gave no reason for his refusal; other times he alleged that he was out of money; that he offered to give a note for the balance, etc. They further offer evidence to show that when the final payment was demanded from the defendant, its refusal to pay was not based on any disapproval of the work, but for the reason that there was no money. And this too in the face of their own admission that all of the money necessary to entirely pay the plaintiffs had been deposited with the defendant company, and that during all of the contract period it was regarded by all the parties as the real paymaster from whom the plaintiffs were to receive their money. How did the $220 yet unpaid to the plaintiffs, and which the defendant at one time admittedly had in its hands, become diverted to some other use? Could it have been without joint action and a joint understanding between the owner and the defendant?

Had no testimony whatever been offered by the defendant, we cannot see how the learned trial court could have declared as matter of law that there existed in the minds of either the owner or the officers of the defendant an honest conviction that the work had not been done according to the terms of the contract, and therefore that the plaintiff could not recover. After having, as already stated, solemnly declared upon twenty-one different occasions that the work had been done in accordance with the contract, some explanation was necessarily due to account for the sudden change in the attitude of the owner and of the defendant who was paying out his money at his direction. In the absence of such explanation, the jury might well infer that the position taken by the owner in regard to the last payment was either the result of a sudden whim or caprice, or was but a subterfuge to avoid the payment of money that he justly owed. If he was thus not warranted in refusing to sign the voucher, the jury might further find from the evidence that the defendant was acting merely under his direction and not upon any independent ground in refusing to pay the money that had been earned. As we have seen, the owner and the defendant seem to have acted in perfect harmony throughout the entire transaction. Each time when he approved the work, its approval followed. Each time when he vouched, it paid without question. When he suddenly refused the last voucher, under circumstances from which a jury could find that he was not acting in good faith, the defendant just as suddenly refused to give its approval and declined to pay. Its officer admits that it has not now. in its possession the balance of the money originally deposited with it for the express purpose of paying the plaintiffs’ claim. As we have already indicated, the appropriation of this money to some other use of the owner might well lead to the inference that the two were acting under a mutual arrangement in refusing the last item of the plaintiffs’ claim. We are of the opinion, therefore, that under the pleadings and the whole of the evidence there was raised an issue of fact to be submitted to a jury under proper instructions.

It is quite true that considerable evidence was offered by the defendant tending to show that the work done by the plaintiffs was negligent and careless from the beginning; that complaint was frequently made on these grounds, and that the various vouchers were signed only on the faith of the promises made by the plaintiffs that defective workmanship would be replaced and the, contract faithfully performed. All of these, however, would but raise a conflict of evidence upon disputed questions of fact, the result of which would necessarily be a submission of the case to the jury. For these reasons we think the learned trial court was right in refusing to direct a verdict for the defendant. And this being so, his refusal to subsequently enter judgment non obstante veredicto necessarily followed.

Judgment affirmed.


text:
    Hoskins v. Peoples, Appellant.

      Negligence — Principal and agent — Evidence as to agency — Cleaning streets — Flushing pavement — Fright of horse.

    1. In an action against a firm of contractors for cleaning city streets, to recover for the death, of a horse frightened by the sudden flushing of a street, the agency of the workman who flooded the street, with the defendants, may be shown by proof of his garb, that he was in possession of the usual and appropriate tools, and that both uniform and tools were openly and visibly marked with the names of the defendants. When such evidence is produced it is not reversible error to admit in evidence the declaration of the workman that he was in fact an employee of the defendants.
    2. Where a workman employed by contractors engaged in cleaning the public streets, flushes a street, and as a result a horse is frightened, runs away and is killed, the owners of the horse before they can recover from the contractors, must show that the manner in which the workman used the water was unusual and extraordinary.
    3. The use of the water was a matter of right and in the line of the duty of the workman and his employers towards the city and the public.
    Argued Oct. 15, 1909.
    Appeal, No. 111, Oct. T., 1909, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 1,768, on verdict for plaintiff in case of Atwood B. Hoskins v. Robert J. Peoples et al., trading as Peoples Bros.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Trespass to recover damages for the death of a horse. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court admitted under exception and objection evidence that the defendants’ names were on the tools of the man who turned on the water, and also upon his uniform (1-3).
    The court charged in part as follows:
    On the other hand, you must consider that fact as has been argued before you, that it was a distance of 250 feet to where the plaintiff’s horse was standing. This fact also you will take into consideration in determining whether a reasonably cautious person should or should not have seen the horse there and have anticipated that this accident would have happened. [But the fact of distance alone is not enough of itself to excuse, because if, for instance, a man were to throw a brick or shoot a cannon and someone at a distance was injured, he might not have seen or known the person was there, but the question would arise whether it was the act of a reasonably cautious person in firing a cannon, under all the circumstances of .the easel] [4] Therefore I repeat these are the principles as to negligence, and you must make up your minds whether or not under all the facts of the case the act of opening the plug in that way at that time, with that quantity of water, was the act of a reasonably cautious person. If you find it was a negligent act, of course the verdict should be for the plaintiff, provided there was no contributory negligence on his part. Now, as to that. If he had driven his horse into the stable, the accident would not have happened, or possibly if he had left someone in charge of it, the accident possibly would not have happened. But what he did is for you to pass upon, whether he did what a reasonably cautious person would have done. Assuming there was negligence on the part of the defendant in opening the water at that time and place, it then becomes a- question of fact for you to decide whether in tying this horse as he did was the act of a reasonably cautious person, under the circumstances. If you find there was negligence, and if you find, leaving the horse there unattended and so tied, as has been described, or so fastened, was not the act of a reasonably cautious person, your verdict should be for the defendant. I think those are the points of law in the case.
    Defendant presented these points:
    1. If the jury believe that the fire plug was located some 250 feet from the place where the horse was tied, the distance was too great for the ordinary, reasonable man to expect that the frightening of an ordinarily gentle and well-trained horse would be the natural and probable consequences of his act of turning on the plug and your verdict should be for the defendants. Answer: Refused. [5]
    2. Unless the jury believe that there was something extraordinary in the turning on of the plug, something different from the usual turning on of fire plugs to flush the streets, the defendants were within their duty and your verdict should be for the defendants. Answer: Refused. [6]
    3. If the jury believe that it was the duty of the defendants to flush the streets under their contract with thé city and were doing that work in the usual and customary way, your verdict should be for the defendants. Answer: Refused. [7]
    Verdict and judgment for plaintiff for $1,500. Defendants appealed.

      Errors assigned among others were (1-3) rulings on evidence, quoting the bill of exceptions; (4-7) above instructions, quoting them.

      Henry H. Farley, with him Edward D. West, for appellant.
    — There is certainly no question better settled in Pennsylvania than that agency cannot be proven by the declaration of the agent: Plumsted v. Rudebagh, 1 Yeates, 502; Stewart v. Machine Co., 200 Pa. 611; Singer Mfg. Co. v. Christian, 211 Pa. 534; Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241; Hennessey v. Baugh & Sons Co., 29 Pa. Superior Ct. 310.
    The fifth, sixth and seventh assignments of error, wherein it is contended that the learned court erred in declining the defendants’ first three points, it is respectfully submitted that these points are clearly within the range of Piollet v. Simmers, 106 Pa. 95; Hazel v. Ry. Co., 132 Pa. 96; Yingst v. Ry. Co., 167 Pa. 438.

      Ruby R. Vale, for appellee.
    — The facts of this case made it imperative for the court to submit to the jury the question of the standard of duty which the appellants owed to appellee: Schum v. R. R. Co., 107 Pa. 8; Pennsylvania R. R. Co. v. Coon, 111 Pa. 430; McKee v. Bidwell, 74 Pa. 218; Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300; Hays v. Paul, 51 Pa. 134.
    It is submitted that it is not a justification that the act producing the injury was lawful or done in exercising a lawful right, if the injury arose from doing it negligently: Penna. R. R. Co. v. Barnett, 59 Pa. 259; Penna. R. R. Co. v. Horst, 110 Pa. 226; Webb v. Ry. Co., 202 Pa. 511.
    The relation of master and servant between the appellants and the doer of the negligent act are conclusively proved by competent evidence: Hershinger v. R. R. Co., 25 Pa. Superior Ct. 147; Reel v. Adams Express Co., 27 Pa. Superior Ct. 77; Corpies v. Sand Co., 31 Pa. Superior Ct. 107; Hennessey v. Baugh & Sons Co., 29 Pa. Superior Ct. 310; Sarver v. Mitchell, 35 Pa. Superior Ct. 69.
    May 12, 1910:
   Opinion by

Head, J.,

At the trial the plaintiff offered evidence, not contradicted, which tended to establish that he was the owner of a well-bred and well-broken horse of gentle disposition and accustomed to the sights and sounds to be ordinarily encountered on the streets of a city. On a spring morning his brother, who was a veterinary surgeon, drove the horse to Fortieth street— between Walnut and Locust — in the city of Philadelphia, and hitched him to a telegraph pole standing along the western side of said street near a livery stable which he intended to visit. The pole was provided with a chain secured to it by a ring, apparently intended for the convenience of the proprietors of the stable or their patrons. Having thus hitched the horse, the driver left it and went into the stable to attend to the business which had taken him there.

The city of Philadelphia had entered into a contract with the defendants to clean its streets in the section embracing the portion of Fortieth street above mentioned. On the northeast corner of Locust and Fortieth streets stood a city water plug. It was distant from the telegraph pole mentioned about 250 feet. The traffic on Fortieth street being southward, the horse, as he stood hitched, faced the water plug. Whilst the driver was in the stable a man clothed in the familiar white uniform worn by those who clean the streets came to the plug and opened it to its full capacity. The name of the defendant firm was stenciled on the clothes and cap which he wore, as well as on the wheelbarrow, brooms and other tools he had with him. He was, of course, provided with the necessary mechanical contrivance to open the water plug. The water thus suddenly given full head, shot across the street, and when met by the curb on the west side formed a rapid flowing stream five or six feet in width and perhaps six inches in depth. This stream, carrying on its surface paper, sticks and other débris of the street, moved swiftly down along the west side of it towards the hitched horse. As it approached him he began to rear and prance, and having finally pulled the ring from the pole, ran away carrying the chain with him. He first collided with a wagon, as a result of which the buggy was demolished and most of the harness stripped from him. Continuing his flight, he ran into another wagon at the cross street and broke his leg, as a consequence of which he had to be shot. The driver of the horse, hearing the noise of the runaway, went to the door of the stable and saw his horse going down the street. He followed him to the point where he was finally injured and had to be killed. He then returned to the plug and questioned the man who had opened it, who then admitted that he was an employee of the defendants. It was further testified that this man was engaged in taking care of the section of the street at that point and had been seen working there off and on prior and subsequent to the accident. The plaintiff, alleging that the loss of his horse was due to the negligence of the defendants’ servant, brought this action to recover its value. The trial resulted in a verdict and judgment for the plaintiff and the defendants appeal.

The first three assignments of error are based upon the action of the learned trial court in admitting evidence of those facts above recited tending to show that the individual who turned on the stream of water was a servant of the defendants. The supporting argument, however, is confined chiefly to that portion of it tending to prove the fact by the declarations of the alleged servant. Had there been no other evidence as to the relation of master and servant save only the declaration of the alleged servant, the evidence would have been clearly inadmissible. But here the independent facts from which the inference of such relation may be drawn amount to much more than a scintilla. The defendants had entered into a formal contract with the city in accordance with which they assumed, for that section, the city’s obligation to clean its streets. The individual in question was engaged in the performance of work necessary in the discharge of that contract. He was doing this work, not clandestinely but openly; he was clad in the garb usually worn by those doing such work; he had in his possession the usual and appropriate tools, and both uniform and tools were openly and visibly marked with the names of the defendants. • If, in the absence of any denial whatever by the defendants, a jury could not fairly infer from these facts the existence of the relation of master and servant, it is hard to see how that fact could be established short of direct evidence of the employment of the individual by the defendants. We think the learned trial court could not have properly rejected this independent proof of agency, and this being true, there was certainly no reversible error in receiving the declarations of the person whose agency had thus been otherwise established: Singer Manufacturing Co. v. Christian, 211 Pa. 534; Stewart v. Climax Road Machine Co., 200 Pa. 611. The first three assignments must therefore be dismissed.

The right of a city to clean its streets is not only a necessary function of the municipality, but in the light of modern scientific knowledge the frequent exercise of that right becomes a duty of paramount obligation. In the discharge of this obligation the city must have the right to use the means ordinarily and reasonably adapted to accomplish the object in view. It was of the first importance, therefore, that the jury be carefully instructed that no negligence could be imputed to the defendants merely from the fact that they, acting under the city’s authority, had used the said water supply for the purpose of cleaning the streets. Every individual citizen, exercising his right of passage over the streets, could enjoy such right only in subordination to the paramount right of the city to keep its streets free from filth.

But even in the exercise of the clearest right or the performance of the most obvious duty, the city or its contractors would be bound by the general obligation to act with due care according to the circumstances. A failure to recognize this obligation would be negligence. No conclusion of negligence, therefore, could be predicated merely on the fact that the defendants undertook to perform their duty while the plaintiff’s horse stood hitched on the street, nor on the doing of any act ordinarily incident to the reasonable and proper performance of that duty.

The burden then was on the plaintiff to show that his injury resulted from something else than the mere exercise, in a proper and ordinary way, of the city’s right to clean its streets. Recognizing the existence of this burden, he founded his cause of action, not on the bare fact that the defendants were engaged in the exercise of the city’s lawful right, but on the allegation that they “ negligently and carelessly and without regard for the safety of persons lawfully using the same (the street),turned on the water, .... in close proximity to the place where said horse and carriage were standing, in such manner as to permit the water therefrom to be hurled in a great volume and with great force and nqise across the said street,” etc.

That it was possible for the defendants to abuse their right and be guilty of negligence, even in the performance of a recognized duty, could scarcely be denied. But such negligence could not be inferred merely from the fact that the plaintiff suffered an injury. It was incumbent upon him to offer evidence from which a jury could reasonably infer that the manner in which the defendants on this occasion used the water was unusual and extraordinary. We think the record discloses a sufficient amount of evidence tending to establish this fact to necessitate a submission to the jury of the question of the defendants’ negligence. The plaintiff’s brother testified that when he came to the door of the stable he saw that “a large vdlume of water was passing in front of the door that subsequently measured before it dried off, at a point 150 feet away from the plug, it was more than five feet six inches wide and the volume of water which passed at that time was more than six inches deep.” In answering the question, “Was there anything in this flushing of the street that in your judgment caused this horse to run away different from the ordinary flushing?” the witness said, “I think it was the volume of water, the great force with which it was thrown,” etc. He further declared that the noise made by the water was very noticeable and very loud because he — defendants’ employee — was sending apparently the full force. Charles Schule, an employee in the livery stable, testified that at the time the horse broke loose the water was flowing along the side of the street in a stream from four to five feet wide with papers, sticks, etc., floating on the current. .When asked if he had ever seen, in that neighborhood or in other parts of the city, the streets flushed with such a great volume of rapidly moving water, he answered that he had not. William Carson, a landscape architect, driving along the street in a florist’s wagon just about the time the plaintiff’s horse broke loose, was asked this question, “Q. - Just tell the court and jury about the great volume of water, how great the volume of water was in width in that street? A. It was coming down clean over the curb on the west side of the street and clean out to the car track, and our horse would not go through it. The water was coming across the street.” This was the whole of the testimony produced by the plaintiff to support the allegation in the statement of claim we have quoted. Whilst it may be said that it is somewhat scant in quantity and convincing power, we are nevertheless constrained to say that it amounted to more than a scintilla, and therefore that the court could not have properly withdrawn the case from the jury on the ground that there was no evidence to support the allegation of the defendants’ negligence.

With the evidence in this state the defendants, by their second point asked the court to instruct the jury that, “Unless the jury believe that there was something extraordinary in the turning on of the plug, something different from the usual turning on of fireplugs to flush the streets, the defendants were within their duty and your verdict should be for the defendants.” As we construe this point it correctly defined the true line of inquiry the jury should have followed, and was but a prayer for the application to this case of the principle we have already stated. Its refusal warranted the erroneous conclusion that even though the defendants had exercised their right to use the said water supply to clean the streets only in the ordinary and usual manner, they could still be found guilty of negligence. The same may be said of the third point and its refusal.

Nor was the learned trial court fortunate in the illustrations selected to define to the jury the character of the defendants' act. “But the fact of distance alone is not enough, of itself, to excuse because if, for instance, a man were to throw a brick or shoot a cannon and some one at a distance was injured, he might not have seen or known the person was there, but the question would arise whether it was the act of a reasonably cautious person in firing a cannon under all the circumstances of the case.” A jury might readily assume that either of the acts referred to, done on the streets of a large city, would likely be both voluntary and reckless and would properly subject the actor to liability for injurious consequences. But the act of the defendants’ servant, in turning-on the water to clean the streets, was the exercise of a right, the discharge of a duty to the city and all of its people collectively. If there was negligence it could be found only in an abuse of the right, in the creation of unusual and extraordinary incidents and from these the injury must have resulted. The portion of the charge complained of in the fourth assignment was therefore misleading and harmful to the defendants.

The plaintiff violated no law or city ordinance when he hitched his horse as he did. Of course he could not thereby stop the ordinary activities of the city and assumed the risk of his horse taldng fright at any of the sights or sounds reasonably and ordinarily incident to such activities. Whether the horse was securely hitched, whether the ring in the pole was heavy enough for the purpose, these and like questions were for the jury.

So too the exact measure of care the defendants should have exercised under the circumstances could not be defined as matter of law. Its ascertainment involved an appeal to the standard of the ordinary, usual and reasonable, and this could be properly applied only by the jury after being duly instructed as to the controlling legal principles.

The fourth, sixth and seventh assignments are sustained; the remaining ones are overruled.

Judgment reversed and a venire facias de novo awarded.


text:
    Leighton v. Journal Printing & Publishing Company, Appellant.

      Landlord and tenant — Bent—Acknowledgment of indebtedness— Affidavit of defense.

    Where a tenant acknowledges in writing that he owes a certain amount for rent to his landlord, he cannot afterwards set up as a defense to the payment of this amount that prior to the date of the acknowledgment he had been evicted, and that the landlord had entered into an oral agreement to execute a new lease on the same terms as the original lease. /
    Argued April 15, 1910.
    Appeal, No. 57, April T., 1910, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1909, No. 723, making absolute rule for judgment for want of a sufficient affidavit of defense in case of H. S. Leighton v. Journal Printing & Publishing Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for rent in arrears.
    Rule for judgment for want of a sufficient affidavit of defense.
    Sharer, J., filed the following opinion:
    The action is upon a lease, for rent in arrear, plaintiff setting out a copy of the lease, which is for five years from April 1, 1906, at $80.00 per month in advance; a waiver of appraisement signed by the defendant company and delivered to the plaintiff in November, 1908, and a statement of the payments on the rent made by defendant. The waiver of appraisement referred to admits that in November, 1908, there was owing $620.18 for rent and costs, and agrees to a delay of appraisement and sale on the part of the constable representing .the landlord. The statement of rent due shows that the rent due in November, 1908, was $589.18, and the costs were $31.00. The affidavit of defense admits the making of the waiver of appraisement and acknowledgment of indebtedness for rent and costs in the sum of $620.18, but says that the defendant at the same time claimed that there were certain deductions to be set off against the rent. It is further alleged that a fire occurred in the demised premises on May 23, 1908, making them untenantable, and that the plaintiff without the consent- of the defendants entered upon the premises and reconstructed them upon an entirely different plan from the original premises, which entry they say amounts to an eviction, and they further say that the lease sued upon was on or about June 23, 1908, ended and determined by reason of this eviction. They further say that soon after the time of the fire on May 23, 1908, an oral agreement was entered into that the plaintiff would execute a new lease, the terms of which were that the rent should be $80.00 per month; that the tenancy was to expire April 1, 1911, and the tenant was to pay for water, gas and electric lights, which, so far as we can see, is precisely the lease which already existed; and that it was further agreed that the plaintiff should proceed to complete the repairs to the building and finish the same at the earliest date possible, so as to be adapted to the needs of the corporation, and that in this way the defendants were induced to continue in possession of the premises as tenants, and that the plaintiff has wholly failed to carry into execution that part of the agreement, that the building was never completed; that upwards of one-half of the building was wholly uncompleted, and that 'fully one-half of the rooms were untenantable, and that in consequence thereof the possession by the tenant of the building was seriously interfered with and the defendants “were unable to transact their business therein with that degree of facility which said business demanded.” ■ The affidavit then proceeds to set out that, the defendants have suffered great damage, that the capacity of the plant was reduced, and that they have not been able to use a sufficient number of employees to expedite the business, and that the cost of filling of orders was greatly enhanced; all of which was claimed as set-off, together with the profits on the production it would have made but for the destruction of the elements on account of the untenantable condition, $700; damages to machinery and equipment for the same reason, $500; damages to goods of the president of the company for the same reason, $1,000; and that a second fire occurred in March, 1909, which greatly damaged the building, and the plaintiff has not repaired the same. As all the matters supposed to amount to an eviction, and the oral contract to make a new lease and the alleged failure to perform it happened before November, 1908, when the company admitted its liability for rent up to that time, and by that admission procured delay of proceedings instituted against them for the collection of the rent, it would seem that the defendants ought not to be allowed to set up these matters at this time as a defense. ■
    The oral agreement to lease which is alleged to have been made being on precisely the same terms as the original lease would seem to furnish no consideration for the alleged promise on the part of the plaintiff to rebuild the premises, and no other consideration is alleged, and even if the plaintiff had made a valid agreement to repair, the denial that he did so is very vague and indefinite. The defendant simply says that the building was not completed, that a number of the rooms were absolutely untenantable, and that the consequence of this was that the defendants were unable to transact their business therein with the facility which their business demanded. This leaves it entirely uncertain in what respect the building lacked completion. According to the defendants’ own account they were to pay rent at $80.00 a month during the time when' the plaintiff was making the repairs. It is not alleged that any agreement was entered into as to when these repairs were to be finished, nor that the plaintiff has had a reasonable time to repair.
    In view of the agreement of November, 1908,' which was after the matters set up in defense had taken place, and the vague and -uncertain character of the allegation as to a new contract and its breach, there would seem to be no reason why the defendants should not pay the rent they agreed to pay for the premises, which they have occupied all the time. It seems to us, however, that the charge for constable’s costs included in the plaintiff’s bill of 131.00 is not recoverable in this action, and that amount should be deducted from the plaintiff’s claim.
    The rule for judgment is made absolute for the amount claimed, less $31.00. To which defendant excepts and at its instance bill sealed.

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

      Joseph F. Mayhugh, for appellant.

      S. B. McClure, for appellee.
    May 12, 1910:
   Per Curiam,

After a careful consideration of the statement of claim and affidavit of defense and the arguments of counsel, we all concur in the conclusion reached by the learned judge of the Common Pleas and the reasons therefor set forth in his opinion.

The judgment is affirmed.