text:
    Murphey, Appellant, v. Philadelphia Rapid Transit Company.

      Practice, C. P. — Trial—Reservation of question of law-

    A reservation of a question of law is properly made by the following instruction: “This verdict will be taken subject to the point of law reserved, whether there is any evidence in the case to be submitted to the jury.”

      Negligence — Street railways — Motorman—Scope of employment.

    Where a street car is obstructed by a coal wagon, and the motorman leaves his car, and in attempting to start the horses of the wagon negligently injures the driver, the street railway company is not liable to the driver, inasmuch as the motorman was acting without the scope of his employment.
    Argued Dec. 13, 1905.
    Appeal, No. 95, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 3400, non obstante veredicto in case of Thomas C. Mürphey v. The Philadelphia Rapid Transit Company.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    Verdict for plaintiff for $550, subject to question of law reserved. -
    The court subsequently entered judgment for defendant non obstante veredicto.

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

      Howard A. Davis, with him Edward B. West, for appellant.—
    There was no legal reservation of a point of law: Confer v. R. R. Co., 209 Pa. 425; Butts v. Armor, 164 Pa. 73; Com. to use v. McDowell, 86 Pa. 377; Coolbrotli v. R. R. Co., 209 Pa. 433.
    January 13, 1906:
    The question whether the motorman was acting within the scope of his employment was for the jury: Barwick v. English Joint Stock Bank, L. R., 2 Ex. 259; Farwell v. R. R. Corp., 45 Mass. 49; Wharton on Neg. (2 ed.) sec. 160; McClung v. Dearborne, 134 Pa. 396; Guinney v. Hand, 153 Pa. 404; Brunner v. Tel. Co., 151 Pa. 447; Pollock on Torts (6 ed.), pp. 84, 91; Dwinelle v. R. R. Co., 120 N. Y. 117 (24 N. E. Repr. 319); Johnson v. Armour, 13 Fed. Repr. 490; Penna. Co. v. Toomey, 91 Pa. 256.

      Thomas Leaming, with him Charles E. Morgan, 3d, for appellee.
    — The case is ruled by Rudgeair v. Reading Traction Co., 180 Pa. 333.
   Opinion by

Morrison, J.,

This is an appeal by the plaintiff from the judgment of the court below in an action to recover damages for personal injuries sustained by the alleged negligence of the defendant. The facts as stated by the appellant’s counsel are as follows : On December 11, 1903, the plaintiff was engaged in the retail coal business in the city of Philadelphia; on the morning of that day a wagon of the plaintiff was backed against the curb of West Logan Square, or North Nineteenth street. The plaintiff was delivering coal and his wagon was backed in the usual way, the horses ’ heads, turned toward the south; the back of the wagon towards the west; the front towards the east and near to the track of the defendant company on Nineteenth street. The driver of the wagon was in the cellar of the house where the coal was being delivered. A large • modern car of the defendant, in charge of its servants, approached the wagon of the plaintiff, and the motorman found that he could not get past the plaintiff’s wagon, as it projected about an inch too far to allow the car to pass. The motorman said: “ I am eight minutes late, do not delay me.” The plaintiff said, “Wait a minute and I will lower the wagon,” and in -order to do so the plaintiff took hold of a crank on the side of the wagon which operated the wheels by which the wagon was lowered and raised. While the plaintiff was in the act of lowering the wagon, the motorman got off the car, took hold of the plaintiff’s team and started it ahead, thus pulling the crank away from the plaintiff, causing it to revolve rapidly and strike the plaintiff in the face, causing the injuries complained of.

At the trial the defendant offered no testimony and moved for a judgment of compulsory nonsuit which the trial judge refused, and the case was submitted to the jury.with the following reservation placed on the record-: “ This verdict will be taken subject to the point of law reserved, whether there is any evidence in the case to be submitted to the jury.” It is not contended that the facts as stated in the appellant’s history of the case were not substantially sustained by the evidence.

The defendant’s points were as follows: 1. “ Upon all the evidence your verdict must be for the defendant. 2. “Unless you find as a fact that the motorman was directed by the rules of the company, to remove wagons from the track, the motorman was acting beyond the scope of his employment, and the defendant is not liable for the consequences of his act.”

The jury found a verdict in favor of the plaintiff for $550. The defendant moved the court for a judgment non obstante veredicto, and the plaintiff moved the court for judgment on the verdict. Subsequently the court entered judgment in favor of the defendant, non obstante veredicto, and it is from this judgment that the plaintiff appealed.

The assignments of error are as follows : 1. “ The learned court below erred in reserving as a point of law, notwithstanding the verdict of the jury, the following: ‘ Whether there is any evidence in the case to be submitted to the jury.’ 2. The learned court below erred in entering judgment in favor of the defendant upon the point reserved, notwithstanding the verdict.” 3. The learned court below erred in not entering judgment in favor of the plaintiff, upon the verdict of the jury, notwithstanding the point reserved.”

It is contended by the appellant that the evidence in this case was for the jury; that the trial judge, after refusing to enter a nonsuit, submitted the evidence to the jury, and stated at the conclusion of his charge, “ this verdict will be taken subject to tbe point of law reserved whether there is any evidence in the case to be submitted to the jury,” and the jury having rendered a verdict in favor of the plaintiff, that the court-erred in entering judgment in favor of the defendant on the point reserved, non obstante veredicto. The point sought to be made is that there was no legal reservation of a point of law, and, 'therefore, the learned trial judge allowed his own judgment, as to what was proved by the evidence, to overthrow the'finding of the jury. The fallacy of this argument lies in the fact that a good point of law was reserved. It is true that the weight of the evidence and what it proves, is for the jury, but it is equally true that the question, of whether there is. any evidence in the case sufficient to support a verdict in favor óf the plaintiff, is always a question of law, and nothing else. The learned counsel cites Confer v. Railroad Co., 209 Pa. 425, and Oil Co. v. Forsyth, 48 Pa. 291, but those cases do not support his contention. They substantially hold: “The trial judge himself cannot draw conclusions of fact from the evidence. Hence a reserved question must be a pure question of law. It cannot be a mixed question of law and fact, for that would necessarily draw to the court what properly belongs to the jury. . . . The trial judge in entering judgment for the defendant, notwithstanding the verdict of the jury, assumed that the finding of the jury in this respect was wrong. But the fact was specifically submitted to the jury.”

The difficulty of that case was that the trial judge did not reserve a pure question of law. But in our case the trial judge did reserve a pure question of law and that gave him the right to subsequently enter judgment in favor of the defendant, non obstante veredicto. Butts v. Armor, 164 Pa. 78 is also cited. But that was a case where the judgment was entered, non obstante veredicto, on the ground that the facts did not warrant the inference drawn from them by the jury, they having found, “ that the testatrix was not of sound and disposing mind and memory at the time she executed the will. Then, on the reserved point, the learned president judge in vacation entered judgment* for plaintiff, notwithstanding the verdict, on the ground that the inference of incapacity was not warranted from the facts alleged to be proven.” That is, on conflicting evidence as to the disposing mind and memory of the testatrix, the court substituted its judgment for that of the jury. Commonwealth v. McDowell, 86 Pa. 377, cited by appellant, is a case where the question reserved was Whether the whole or. any portion of the money in the hands of Painter & Co., or with Jay Cooke & Co., was authorized by the charter of the bank, and whether or not the bond of defendant is legal and valid.” The court entered judgment in favor of the defendant, non obstante veredicto, which judgment was reversed because the reserved question was a mixed question of law and fact.

Coolbroth, Appellant, v. Penna. R. R. Co., 209 Pa. 433; is also cited, but that case was reversed because the question reserved was a mixed question of law and fact and not a legal reservation of a question of law alone. Fisher v. Scharadin, 186 Pa. 565, and cases following it, including Casey v. Paving Co., 198 Pa. 348; Keefer v. Life Ins. Co., 201 Pa. 448, and Confer v. Railroad Co., 209 Pa. 425, settle the law that the. reserved question in the present case is good. The first .assignment of error is not sustained.

Upon the main question, we think the learned court did not err in directing judgment in favor of the defendant. In our opinion, there is no substantial difference between the facts in this case and in Rudgeair v. Reading Traction Co., 180 Pa. 333. In that case the motorman abandoned his post and interfered with the plaintiff who was in the control of'his team and wagon, obstructing the track of the company defendant. The case was ruled upon the ground that there was nothing to indicate that the act committed was within the scope of the authority of the motorman, nor within the line of his employment. In the present case it is conceded that the motorman abandoned his car and interfered with the plaintiff’s team on the street, and there is not a scintilla of evidence that- the motorman was in the line of his employment or within'the scope of his authority in so doing. The plaintiff was unloading coal in the public street where he had a right to be. In the Rudgeair case this question was ruled as a matter of law, in a Per Curiam opinion, Justice Stebrett, as follows (p. 337): “ The testimony offered in this case shows that plaintiff was assaulted on the street and beaten by John Van Reed, an employee of the traction company, defendant; but it clearly appears that in the commission of the assault and battery Van Reed was not acting within the scope of his employment as a motorman of the company, or by the authority or direction of any of its officers or agents. The principle, respondeat superior, has no application to such a purely personal trespass as that disclosed by the evidence presented. The court was therefore clearly right in refusing to take off the nonsuit.” It should be noted that this was said in a case where there was an entire lack of evidence as to the scope of the authority of the motorman.

In the present case, we can discover no reason for holding the defendant company responsible for the pure, unauthorized trespass of the motorman, upon the plaintiff, after he had abandoned his post of duty and volunteered to trespass upon the plaintiff’s property.

The real question is whether the motorman was within the scope of his employment, and whether this question was for the court or jury. On the facts we think it was a legal question for the court. See McClung v. Dearborne, 134 Pa. 396; also Penna. Co. v. Toomey, 91 Pa. 256, where the conductor of a railroad train ejected from the platform a person who had no right to be there, and it was held that inasmuch as he was acting within the line of his duty, the company was liable for his negligence, but not for his malice. This may not be the law now on the point decided in the McClung case. But it is applicable upon the question of the motorman acting within the scope of his employment. We do not think the case of Guinney v. Hand, 153 Pa. 404, helps the plaintiff in view of the doctrine of the Rudgeair case. The Guinney case decided that the question whether a servant was acting within the scope of his authority when he committed a negligent act is a question of fact for the jury. But see Brennan, Appellant, v. Merchant & Co., 205 Pa. 258, where it is said (p. 261): “ Whether the negligent act was within the servant’s employment was a question of fact for the jury: Guinney v. Hand, 153 Pa. 404. Of course, if the facts and inferences to be drawn from them are not in dispute, the court may determine the question as a matter of law.” We do not regard Quinn v. Shamokin, etc., Ry. Co., 7 Pa. Superior Ct. 19, in conflict with our case. Nor is there anything in Brennan v. Merchant & Co., 205 Pa. 258, which convicts the court below of error in holding that the motorman was not acting within the scope of his employment. The second and third assignments of error are not sustained.

Judgment affirmed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Arnold’s License.

      Liquor laws — Res adjudicata — Revocation of license.

    The principle of res adjudicata cannot be set up against a rule to revoke a liquor license where it appears that the rule in the previous proceeding had been discharged by consent, and that the parties procuring the two rules had been different persons.
    The refusal of the Supreme Court to grant a mandamus to compel the court of quarter sessions to grant a rule to revoke a liquor license, is not an adjudication on the merits of the case, but is based on the ground that the remedy of the petitioner for the rule is by an appeal to the Superior Court.
    Where the petitioner's for a rule to revoke a liquor license show that the licensee sold liquors in three different buildings, one of which was not connected with the licensed premises, it is the duty of the court to grant the rule, and a refusal to do so is reversible error.
    Argued Dec. 18, 1905.
    Appeal, No. 19, March T., 1906, by W. O. Rishel, from order of Q. S. Cumberland Co., refusing rule to revoke a liquor license In re License of M. L. Arnold. Before
    Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Reversed.
    Petition for rule to revoke a liquor license. Before Sadler, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was refusal to grant the rule.

      E. M. Biddle, Jr., with him Frank B. Sellers, Jr., for appellant.
    — The court of quarter sessions must grant the rule: Campbell’s License, 8 Pa. Superior Ct. 524; Com. v. Francis, 9 Pa. Dist. Rep. 744; Com. v. Brewing Co., 1 Pa. Superior Ct. 627; Washington County Licenses, 11 Pa. Dist. Rep. 339; Revocation of Licenses, 11 Pa. Superior Ct. 579; Com. v. Holstine, 132 Pa. 357; Com. v. Munk, 1 Pa. Superior Ct. 479.
    January 13, 1906:
    The court has no discretion in the matter, but must revoke the license: Bosch’s License, 5 Pa. C. C. Rep. 315; Carlson’s License, 127 Pa. 330; Campbell’s License, 8 Pa. Superior Ct. 524; Garey’s License, 1 Pa. Dist. Rep. 616; Genova’s License, 3 Pa. Dist. Rep. 722.

      Caleb S. Brinton, with him Arthur R. Rupley, for appellee.
    A second rule after the first one has been discharged will not be granted by the judge unless there appear satisfactory reasons for its allowance and explanation why the first rule was discharged: Mitchell v. Pierce, 1 W. N. C. 156; Brown v. O’Brien, 3 Clark, 93.
   Opinion by

Morrison, J.,

This is- an appeal of W. O. Rishel and others from the decree of the court of quarter sessions of Cumberland county refusing to grant a rule on M. L. Arnold to show cause why his license should not be revoked.

The petition set forth quite strong reasons, at least sufficient to require the granting of a rule, and an investigation of the question of whether or not the licensee had violated the law by selling intoxicating liquors under a license granted to him by said court, at two places other than the house for which the license was granted.

We are met at the threshold of the case with the contention that a rule had been obtained previously for the same purpose and that it had been discharged after hearing and, therefore, the.present petition is controlled by the doctrine of res adjudicata. With regard to this contention it seems sufficient to say that there was no adjudication of the questions raised, the rule having been discharged by consent of all the parties who obtained it. And. .the parties to this proceeding are not the persons who procured the former rule.

' In addition, it is urged that the appellants, on the refusal of the court to grant them a rule, on August 21, 1905, presented their petition to the Supreme Court of Pennsylvania for a mandamus compelling the court to grant the rule prayed for. This petition was filed in the Supreme Court, September 16, 1905, and that court made the following order: “ September 19, 1905. Mandamus refused and petition dismissed.” If it appeared that this order was made on the merits of the case, it would le,ad to an affirmance of the case in the court below and a dismissal of the petition. But it is, doubtless, not on the merits. Section 7, Act of May 5, 1899, P. L. 248, as to the jurisdiction of the Superior Court of-Pennsylvania, reads: “ The said court shall have no original jurisdiction,. . . . but it shall have exclusive and final appellate jurisdiction of all appeals which are now allowed to the Supreme Court in the following classes of cases: (a) All proceedings of any kind in the court of quarter sessions of the peace or before any judge thereof, except cases involving the right to a public office, in which cases the remedy by appeal to the Supreme Court shall not be affected by this act.”

In our opinion, the Supreme Court refused the mandamus because the petitioner’s remedy was by appeal to this court, and, therefore, we are at liberty to consider the petition on its merits.

The learned court below seems to have been controlled, to some extent, by the hardship it would be to revoke the appellee’s license. But this is not of importance. The question is had the licensee violated the law ? The petition seems to properly aver that'he had sold intoxicating liquors in three different buildings, one of these, admittedly not on or connected with the licensed premises. The petitioners averred that another of the buildings was a temporary structure erected long after the license was granted. The court, in the opinion filed, assumes that this building was on. the premises where the license was granted, but that is not admitted by the petitioners, and the averment would seem to prima facie justify the granting of a rule, without which the petitioners were deprived of the privilege of offering their testimony.

“The 7th section of the Act of May 13, 1887, P. L. 108, provides : ‘ that upon sufficient cause being shown or proof being made to the said court, that the party holding a license has violated any law of this commonwealth relating to the sale of liquors, the court of quarter sessions shall, upon notice being given to the person só licensed, revoke the said license.’ This provision is mandatory ; that is to say, where a petition alleging all the essential jurisdictional facts, and duly verified, is presented to the court, it Has no discretionary power to refuse to hear the case: ” Campbell’s License, 8 Pa. Superior Ct. 524. That case is controlling upon the facts averred in the petition.

“ Upon cause shown or proof made that a violation of the law has been committed by a holder of a license it becomes the duty of the court under the Act of June 9, 1891, P. L. 257, after notice given to the person so licensed, to revoke said license : ” Commonwealth v. Brewing Co., 1 Pa. Superior Ct. 627; see also Revocation of Licenses, 11 Pa. Superior Ct. 579.

“ To sustain a conviction for unlawfully selling intoxicating liquors, under the Act of May 18, 1887, P. L. 108, it is not necessary for the commonwealth to prove a criminal intent; if the sale be contrary to the act the intent is immaterial: ” Commonwealth v. Holstine, 132 Pa. 357; see also Stewart v. Commonwealth, 117 Pa. 378.

It is mandatory upon the court to revoke a license upon sufficient cause being shown, or proof being made to the said court, that the party holding a license has violated any law of this commonwealth relating to the sale of liquors: In re Carlson’s License, 127 Pa. 330.

A careful examination of the petition and the reasons given by the learned court for refusing a rule and dismissing the petition, convinces us that the court erred, and the assignments of error must be sustained.

The order of August 21, 1905, discharging the rule and dismissing the petition is reversed and the petition reinstated, with directions to the court to grant the rule prayed for, and hear and dispose of the matter in accordance with the law and facts.


author: Beaver, J.,

text:
    Stephenson’s Estate
    (No. 1).
    January 13, 1906:

      Will — Construction—Devise—Bequest.
    Where testator gives and bequeaths his residence to his wife, “to have and to hold for her use during her natural life provided she remains my widow, and one-third of all other property real and personal I am possessed of, together with three hundred dollars,” and also the furniture and household goods in his residence, the gift to the widow of “one-third of all other property real and personal,” is a gift to her absolutely, and not for life.
    Argued Nov. 22, 1905.
    Appeal, No. 196, Oct. T., 1905, by Lillie Troub, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Robert Stephenson, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exception to report of H. H. Gilkyson, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      A. M. Holding, for appellant,
    cited: Evans v. Knorr, 4 Rawle, 66; Neide v. Neide, 4 Rawle, 75; Cooper v. Pogue, 92 Pa. 254; Du Pont v. Du Bos, 52 South Carolina, 244 (29 S. E. Repr. 665); Noble v. Ayers, 61 Ohio, 491 (56 N. E. Repr. 199).

      Frank S. Groff, with him Gibbons Gray Cornwell, for appellee,
    cited: Reck’s App., 78 Pa. 432; Flintham’s App., 11 S. & R. 16; Weidman v. Maish, 16 Pa. 504; Hancock’s App., 112 Pa. 532; Rewalt v. Ulrich, 23 Pa. 388; Smith’s App., 23 Pa. 9; McFarland’s App., 37 Pa. 300; Fitzwater’s App., 94 Pa. 141.
   Opinion by

Beaver, J.,

The will of Robert Stephenson, the interpretation of which is the question involved here, contains this item :

“ Item. I give and bequeath , to my beloved wife, Rachel Stephenson, the residence situate in the borough of Honey-Brook, to have and to hold for her use during her natural life, provided she remains my widow, and one-third of all other property, real and personal, I am possessed of, together with three hundred dollars.” “ One-half of my -real estate and personal property remaining ” is bequeathed to his living daughter, and to the two children of his deceased daughter, the remainder, to be equally divided between them. In a residuary clause, he provides : “ I hereby give, devise and bequeath to my wife Bachel, all the furniture and household goods in the residence aforesaid.”

It is contended by the appellant that the words “to. have and to hold for her use during her natural life, provided she remains my widow ” apply not only to his residence but also to the bequest of the one-third of all other property, real and personal. It is admitted that the bequest of $300, as found by the auditor, was absolute.

Wills are as diverse as the minds of the men who make them or the minds of the scriveners who attempt to interpret in language the intentions of the men who make them. It is very difficult, therefore, to apply general rules, deduced from particular cases, to the interpretation of other wills. The one canon of construction which has universal application is that the intention of the testator must be gathered, so far as it can be, from the terms of his will.

Upon the face of his will, the intention of the testator seems to be perfectly clear. He wishes his wife, first of all, to have a home, while she lives or remains his widow. In order that there may be no derangement in her mode of living, he attaches, to what is evidently a printed residuary clause, the bequest to his wife of all the furniture and household goods in the residence aforesaid. It would seem, therefore, as if he had her comfort primarily in mind. Whether the remainder of his estate is actually converted by the authorization of the executor to sell, it is very clearly apparent that a conversion was intended, and we have, therefore, in the item under consideration, a devise of real estate and a bequest of personal property in practically the same sentence. It is to be observed also that there are three distinct directions in this item, written as if it were one sentence. There is a devise of real estate for life or widowhood, there is an absolute bequest of $300, and, between the two, there is the bequest of one-third of all other property, real and personal, of which the testator was possessed. To which of these two, concerning which there is no doubt, shall we attach the middle one ? The appellant contends that it must be regarded as being controlled by the limitations or conditions attached to the devise, because it is held thereto by the word “ and.” Might it not be contended, with equal propriety and force, that it is attached to the last by the words “ together with ” ? Giving the conjunction “ and ” the -significance and force of the word “ also,” is not the common sense interpretation of the item, this: “I give and bequeath to my beloved wife, Rachel Stephenson, the residence situate in the borough of Honey Brook, to have and to hold for her use during her natural life, provided she remains my widow, and (I also give her) one-third of all other property, real and personal, I am possessed of, together with three hundred dollars.”

The intention of the testator, taking the entire scope of his will as the evidence of such intention, is, to our mind, very clear, and needs the application of no artificial rules to make it plainer. The presumption of law is, in the absence of absolutely controlling conditions or limitations, that a bequest of personal property is absolute and it requires clear and specific language to limit it to a life or less estate.

Unfortunately for the appellant, the cases in Pennsylvania cited by her counsel do not support the rule which he invokes. The case of Evans v. Knorr, 4 Rawle, 66, in which the subject is discussed, holds that the item: “ I also give and bequeath unto the said George Knorr the sum of one thousand dollars, in trust for the use of her, the said Ann Evans ” is not controlled by a previous devise of land and bequest of goods and chattels to George Knorr, to be held “ in trust, only to and for the sole and separate use of Ann Evans and the heirs and assigns of her, the said Ann, forever, so that the same shall not be in any manner or way whatever subject to any of the debts, contracts or engagements of her husband,” but that the said bequest of $1,000, although in trust, went to the husband. There would be much more reason for applying the appellant’s rule to that case than to the one under consideration, because both bequests were in trust, and it would seem to be reasonable that the distinct trust impressed upon the former devise and bequest should be applicable to the latter.

So in Cooper v. Pogue, 92 Pa. 254, the will contained the following clause: “ To my beloved wife P, (so long as she remains my widow) I give all the income of the home farm on which I now live, containing 200 acres more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom; also, the mansion house in which I live, together with all belonging to it and all that is in it or about it I give to my beloved wife P, the same to be hers and to belong to her forever: held, that the widow had a life estate in the realty, limited further by the duration of her widowhood, and that she took the personalty absolutely.” The intention of the testator there was very evident, to be gathered from the words of the item itself, but not more evident than the intention of the testator in the case under consideration, as gathered from his entire will.

We are in entire harmony with the opinion of the court below in disposing of the exceptions to the auditor’s report and do not deem it necessary to indulge in further discussion.

As was said by Mr. Justice Sharswood, in Reek’s Appeal, 78 Pa. 432: “All mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law, not to attempt to construe that which needs no construction.”

The decree of the court below is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Stephenson’s Estate
    (No. 2).
    January 13, 1906:
   Opinión by

Beaver, J.,

A stipulation has been filed in this case that the judgment rendered in Troub’s Appeal, ante, p. 97, shall govern in the disposition of this appeal.

Ah opinion has been filed in Troub’s Appeal which, according to the stipulation, governs this, so that the decree of the court below is affirmed.


author: Pee Curiam,

text:
    Freemansburg Building & Loan Association v. Billig, Appellant.

      Mortgage — Scire facias — Death of mortgagor — Judgment—Opening judgment — Laches.
    Two returns of nihil are equivalent to a return of scire feci, and the legal validity of a judgment entered thereon for want of an appearance cannot be impeached by evidence that the mortgagor was dead. This well-established rule does not prevent the exercise by the court of its equitable powers to open the judgment, where justice requires it, and prompt application is made. If tender is alleged as a ground for opening the judgment, the evidence to establish it must be clear and satisfactory, and it must be shown to have been kept good. If there is a delay of two years from the time of the alleged tender and the entry of the judgment, and a further delay thereafter of several months, the judgment will not be opened.
    Argued Dec 5, 1905.
    Appeal, No. 33, Oct. T., 1905, by plaintiff, from order of G. P. Northampton Co., Dec. T., 1901, No. 93, dismissing rule to open judgment in case of Freemansburg Building & Loan Association to the use of J. Steward Schick et. al., now to the use of Mary Keen v. Emma E. Billig, now Emma E. Reinhold, and A. H. Reinhold, her husband.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to open judgment.
    Schuyler, P. J., filed the following opinion:
    This is a rule to open a judgment against a mortgagor after two returns of nihil. At the time the mortgage was executed the mortgagor was a single woman, but prior to the issuing of the present writ she married A. H. Reinbold, her codefendant and the present petitioner. It now appears that she was dead when the writ issued. “ Two returns of nihil are equivalent to a return of scire feci and the legal validity of a judgment entered thereon for want of an appearance cannot be impeached by evidence that the mortgagor was dead. This well-established rule does not prevent the exercise by the court of its equitable powers to open the judgment where justice requires it and prompt application is made : ” Luzerne Bldg. &. Savings Assn. v. Engle, 5 Kulp, 105.
    Does then “ justice require ” that this judgment be opened, and if so has “prompt application ” been made to that end? Outside of a number of technical objections, which because of their triviality should not have been made, the only grievance complained of is that the judgment includes too much interest. In support of this complaint the petitioner sets up an alleged tender. “ The burden of proof rests upon the party who pleads a tender,” and the evidence must be “ clear and satisfactory: ” 28 Am. and Eng. Ency. of Law (2d ed.) 42.
    Tested by this rule the evidence before us taken as a whole falls far short of the required standard. Moreover, there is no pretense that the tender was kept good, as required by the overwhelming weight of authority : Summerson v. Hicks, 184 Pa. 566.
    But even if a valid tender had been established, the petitioner is clearly guilty.of laches. The alleged tender was made June 5, 1902; the judgment sought to be opened was entered August 23, 1904, and the present petition was not filed until December 5, 1904, at which time a levari facias had been issued, and the property advertised for sale. As a party to the record the petitioner cannot plead ignorance of the impending danger, and, being one of his wife’s executors, there was nothing to prevent his filing an answer, as such, before judgment, he having been personally served as early as December 5, 1901. His failure to do so was gross carelessness against which equity affords no protection.
    January' 9, 1905. Rule discharged and petition dismissed.

      Error assigned was order discharging the rule.

      Harry C. Cope, for appellant.
    — If it is shown to the court that the mortgagor was dead when the writ was issued, a judgment recovered by default for want of an appearance, on two returns .of nihil, will be set aside and stricken off. But this must be done before the rights of third parties have intervened: Warder v. Tainter, 4 Watts, 270; Stevenson v. Virtue, 13 Pa. Superior Ct. 103; Sleeper v. Hickey, 26 Pa. Superior Ct. 59; First Nat. Bank of Kane v. Ryan, 14 Pa. Dist. Rep. 450: Stewart, Executrix, v. Oatman, 11 Pa. Dist. Rep. 635; Lavin v. Stephens, 10 Kulp, 423; Luzerne Bldg. & Savings Assn. v. Engle, 5 Kulp 105.
    January 13, 1906:
    Under the evidence as contained in the depositions taken in support of and against the rule, there can be no doubt whatever but that the tender made was a good and valid tender, which Mrs. Keen was required to accept on pain of losing interest that might subsequently accrue: Hummel v. Brown, 24 Pa. 310; Vandergrift’s App., 80 Pa. 116; Henry v. Raiman, 25 Pa. 354; Williams v. Bentley, 27 Pa. 294.

      Clinton A. Croman, with him Milton C. Henninger, for appellee.
    — The allegations made by Allen H. Reinbold in the petition to open the judgment, to the effect that the legatees were not made parties to the proceedings in the scire facias on the mortgage can in no wise defeat the regularity of the proceedings in this case: Taylor v. Young, 71 Pa. 81; Rushton v. Lippincott, 119 Pa. 12; Chambers v. Carson, 2 Whart. 365.
    The allegation of appellant, that the judgment was irregularly entered for want of an appearance, on two returns of nihil, is unmeritorious: Taylor v. Young, 71 Pa. 81.
    A mere offer to pay the money is not, in legal strictness, a tender; and even if the tender was in itself sufficient, the defendant is not entitled to take advantage of it, unless he pleads it, and brings the money into court: Sheredine v. Gaul, 2 Dallas, 190; Pennock v. Stewart, 104 Pa. 184.
   Pee Curiam,

Notwithstanding the ingenious argument of the learned counsel for the appellant, a careful examination of the record and evidence brought before us upon this appeal has convinced us that the question of the correctness of the order appealed from depends, after all, upon the questions of tender and laches. It is true that a question is raised in the appellant’s brief as to whether there was a default under the terms and conditions of the mortgage, but upon that question it seems to us that the defendant took inconsistent positions, and that the court was perfectly justified, in view of all the matters alleged in his answer and his petition to open, in assuming that the substantial trial matter in controversy was tbe alleged tender. In support of this we refer to the following clause in the answer: “ The defendant admits that there is due upon said mortgage the principal sum claimed $880, interest from November 1, 1899, to June, 1902, the date of said tender, but denies that there is interest due as claimed by the use plaintiff, to August 22,1904.” As is shown in the opinion of the learned judge the burden of proof was on the defendant, and while we do not say that there was not testimony from which the fact of tender could be found, we are nevertheless of opinion that the fact was not so clearly established that the court was not justified in refusing to open the judgment, especially in view of the appellant’s delay, and his failure to keep up the tender. The rule upon the subject of the review of the refusal to open judgment where there is conflicting testimony is well understood and need not be reiterated. We are of opinion that it does not require a reversal of the action of the court. The principles of law applicable to two returns of nihil to successive writs of sci. fa. sur mortgage are clearly and concisely stated in the opinion of the learned judge and further discussion seems unnecessary.

The order is affirmed and appeal dismissed at the costs of the appellant.


author: Per Curiam,

text:
    Schmidt v. Zeigler, Appellant.

      Judgment — Revival of judgment — Scire facias — Amendment.
    Where a scire facias to revive a judgment is correct in every particular, except the amount, the writ may be amended, since this can be done from the record itself.
    On a scire facias to revive a judgment matters cannot be set up as a defense which are only appropriate in a proceeding to open the original judgment.
    Argued Dec. 5, 1905.
    Appeal, No. 39, Oct. T., 1905, by defendant, from order of C. P. Schuylkill Co., March T., 1904, No. 292, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Max Schmidt v. Owen Zeigler.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias to revive a judgment.
    Rule for judgment for want of a sufficient affidavit of defense.
    Shay, J., filed the following opinion :
    The judgment sought to be revived in the above-stated case is No. 9, May Term, 1899, which was entered for $426.42. The preecipe for the sci. fa. is for $282.99, and the writ follows the preecipe. Counsel for plaintiff have filed a motion to amend, and the authorities bear out his contention that this variance is amendable and we have, heretofore, allowed the same to be done.
    In Dietrich’s Appeal, 107 Pa. 174, it is held: “ In order to continue the lien of a judgment, the sci. fa. to revive must correctly recite the original judgment and substantially identify it, as to parties, date and amount.” In delivering the opinion of the court in this case, Justice Paxson said: “We need not discuss the question how far the proceedings are amendable. The appellants did not ask to amend below or here :” Richter v. Cummings, 60 Pa. 441.
    In Willard v. Norris, 2 Rawle, 56 (63), and in Maus v. Maus, 5 Watts, 315(318), the right of amendment is clearly sustained, and we have therefore no doubt our action in permitting this amendment is justified by all the authorities.
    We come now to the main question.
    In Dowling v. McGregor, 91 Pa. 410, it is held: “ The only defense in the trial of a scire facias on a judgment is a denial of the existence of the judgment, or proof of a subsequent satisfaction or discharge thereof.”
    In Wise’s Appeal, 99 Pa. 193, it is said: “In the trial of a scire facias on a judgment, no inquiry into the merits of the original judgment can be had, and the only defense is some matter arising since the judgment. The original judgment is as conclusive in a scire facias to revive as in an action of debt upon it.”
    In Trader v. Lawrence, 182 Pa. 233, the Supreme Court say: “ As the facts which constitute the alleged payment in this mode, transpired before the last revival of the judgment, the learned court below refused to admit the testimony offered to establish payment, on the ground that only payment after the last revival could be admitted, under the uniform decisions of this court. Campbell’s Appeal, 118 Pa. 128, where we said: “ The only defense to a scire facias to revive judgment is a denial of its existence or proof of a subsequent discharge or satisfaction; and in such a proceeding the merits of the original judgment can not be inquired into.” The judgment is affirmed: Stroud’s Appeal, 109 Pa. 326; Conlyn v. Parker, 113 Pa. 29.
    An affidavit and supplemental affidavit were filed by defendant, and after argument and upon examination of these we were of the opinion they were evasive and contradictory, and, viewed in the light of the cases above quoted, the main allegations were not a proper defense to a scire facias to revive a judgment. We then called for a further affidavit on the subject of payment and have all these before us now .for disposition.
    We eliminate from our consideration everything but the question of payment, arising since the last amicable revival. The existence of the judgment is not denied.
    What have we, then, in these three affidavits on the question of payment?
    Defendant alleges he purchased a lot from the plaintiff (in his original affidavit) in April, 1893, for $1,950. Two hundred dollars was paid in cash and a mortgage of $3,200, conditioned for the payment of $1,600, was given on this lot by the defendant to the Washington German B. & L. Association. This was done at the instance and request and for the use and benefit of the plaintiff, and was paid by the defendant in the usual way, being satisfied in 1903. At the further instance and request and for the use and benefit of the plaintiff, he signed and delivered to plaintiff a judgment note dated May 13, 1893, for $410, the same being then and there alleged and claimed, as deponent now fully believes was wrongfully and unjustly claimed, by plaintiff as a part of said consideration; and upon which, deponent, after paying interest thereon from its said date up to May, 1900, to the amount of $155.95, and on May 11, 1901, paid the sum of $200 in cash on said principal of $410, all of which several moneys paid as aforesaid, to wit: $1,600 by mortgage, $400 cash as above stated and $155.95 interest on said note, make a total of $2,155 paid by deponent to plaintiff on said purchase money price of $1,750, and being $405 more than said price. Wherefore deponent believes he has already paid much more than said stipulated price at first agreed upon.
    It will be noted he does not aver that $1,600 was actually realized in cash on this mortgage to the saving fund, how much was taken off for premiums, etc., but alleges a payment of $1,600 in general terms.
    To No. 9, May Term, 1899, an amicable sci. fa. was signed by defendant for $426.42.
    In his first supplemental affidavit of defense, he says, after reiterating what is set forth above “ he continued to pay the interest thereon up to and beyond the amicable revival of the same in March, 1899, and on May 11, 1901, paid $200 on said principal to George Moyer for plaintiff. Deponent further saith it was his intention to pay off in full said judgment before the last revival should expire and was making the adequate preparation to do so, when his premises were invaded, etc.then going into matters totally foreign to a defense of this case.
    On account of the contradictory statements in these affidavits, in one place alleging payment and in another saying he was making preparations to pay, we called for a supplemental affidavit, which we desired to state specifically, concisely and accurately how much had been realized on the saving fund mortgage and how much had been actually paid since the amicable revival.
    In answer to this, we receive a long supplemental affidavit, the only part of which germain to the issue, is as follows: He again speaks of the $1,900 mortgage, but refrains from saying whether that amount was actually received in cash. “ That deponent paid off the said mortgage and in good faith was paying the interest on the said $400 note, with the intention of paying the same in full, when he found his title assailed, etc.”
    “ That said Schmidt assured the deponent that with the payment of down cash of $200 in April, 1893, and the payment of the mortgage in said Building & Loan Association, he, Schmidt, would get his price of $1,750; that said mortgage upon its satisfaction cost deponent $1,831.59; that deponent paid the interest on said note up to, and after, the revival of the same in 1899, to the amount of nearly $200; and since said revival has paid about $259 thereon in interest and principal — all of which amounts to over $2,400, paid on said $1,750, the original debt. That he is informed and believes and expects to be able to prove that Schmidt got $1,280 cash in advance from the said Washington B. & L. Association, which with the $200 of deponent’s own money, paid April 3, 1893, and the $30.00 not credited by plaintiff, but paid since May, 1899, together with the $200 paid May 14, 1901, would make total payments of $1,710 to Schmidt directly on said debt, the interest being paid in other payments heretofore referred to.”
    Here again in one breath, he claims he has overpaid plaintiff, and in the next shows it was not paid in full.
    The amount which he actually claims to have paid since the last revival and which plaintiff on argument admitted, was $230. In the latter part of the last affidavit he only claims that $1,280 was realized on this mortgage.
    But be that as it may, all these matters would be proper subjects for consideration on a rule to open the original judgment, but have no place in the consideration now before us.
    Has payment been made in whole or in part since the amicable revival of this judgment in 1899?
    We have answered this above by showing the deponent is entitled to a credit of $230, since the revival and such interest as he has paid since that period. As to the balance he has made no defense which we can consider, and the rule must be made absolute as to that balance.
    Now, January 16, 1905, rule absolute. Let credit be given the defendant for a payment of $230 on the principal sum and such interest as he has paid since the last revival, judgment to be entered for the balance and interest. Prothonotary to assess damages.

      Error assigned was the order of the court.

      T. H. B. Lyon, for appellant.

      L. D. Haughawout, for appellee.

      January 13, 1906:
   Per Curiam,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense upon a scire facias to revive an earlier judgment. In the fourth and fifth assignments of error, however, the defendant complains of the action of the court relative to his application to open the original judgment. It is apparent that those assignments are not based on the record properly brought before us on this appeal. We therefore need not discuss them. We remark, however, that even if there were before us an appeal from the refusal of the court to open the judgment there would be no ground upon which we could base a reversal of that action of the court. The opinion filed by the learned judge shows that the matter came before him in reality. upon petition and a responsive answer denying all the material allegations of the petition, and, we add, if there was any testimony outside of them before the court, or which the court ought to have received, it has not been printed and brought up for our consideration. Therefore the fourth and fifth assignments are dismissed.

Passing then to the questions properly raised upon this appeal, we refer first to the amendment of the writ of scire facias. The writ is not printed in the appellant’s paper-book but it is not disputed that, except as to the amount, it correctly recited the judgment sought to be revived in every particular, including the number and term. It is apparent, therefore, that under the authorities cited in the opinion of the learned 'judge below and the appellee’s brief it was amendable by the record itself ; and this being so, the court committed no error in mating that order.

Confining attention to those matters which can properly be set up in defense to a scire facias to revive we find no error in the action of the court. The difficulty with the defendant’s position on this appeal is that his defense, if he has any to the plaintiff’s claim, is one that could not be set up in a proceeding to revive the original judgment. This has been shown quite clearly in the opinion filed by the learned judge below and we do not feel called upon to go over the ground again.

The judgment is affirmed.


text:
    Ulrich v. Matika, Appellant.
    January, 13, 1906:

      Tax sales — Ejectment—Evidence—Personal property on premises.

    In an action of ejectment, where the defendant relies for title upon a tax sale, binding instructions cannot be given in his favor, where the testimony shows that during the period covered by the assessment of taxes for which the sale was made, there was sufficient personal property on the real estate sold to pay all the taxes assessed thereon, wliich might have been seized by the collector, if he had used due diligence.
    Submitted Dec. 6, 1905.
    Appeal, No. 293, Nov. T., 1901, by defendants, from judgment of C. P. Schuylkill Co., Nov. T., 1901, No. 293, on verdict for plaintiff in case of John O. Ulrich v. Mike Matika and Paul Richardson.
    Before Rice, P. J.. Brewer, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Ejectment for land in the Borough of Gilberton. Before Shay, J.
    At the trial it appeared that the defendant, Paul Richardson, claimed title under a tax sale. The evidence showed that there was sufficient personal property on the premises at the time of the assessment to pay all of the taxes levied.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. O. Bechtel, J. H. Rothstein and M. M. Burke, for appellant.

      John O. Ulrich and A. W. Schalck, for appellee.
   Per Curiam,

Judging from the statements in the appellee’s paper-book, there are omitted from- the appellant’s paper-hook matters of record and of evidence which are essential to a proper review of the case. The matters referred to are the defendant’s answer, filed in December, 1901, and full copies of the deed of the county treasurer to the county commissioners, and of the assignment or reassignment to Paul Richardson, the appellant, indorsed thereon. It was important that we should have these before us in order to pass upon the question, raised by the appellee, as to the redemption of the premises within two years from the date of the treasurer’s sale for the taxes of 1897-1899. As the case is presented in the appellant’s paper-book it is impossible, however, to pass upon that question intelligently, and therefore we express no opinion upon it. The appellant’s complaint is that the court erred in refusing to give binding instructions in his favor. But clearly the court would not have been warranted in.giving such instructions in the face of the testimony that during the period covered by the assessment of taxes for which the sale was made “ there was sufficient personal property on the real estate sold to pay all the taxes assessed thereon, which might have been seized by the collector, if he had used due diligence.” Section 2, Act of May 13, 1879, P. L. 55; Act of June 3, 1885, P. L. 71. This question of fact was submitted to the jury with instructions as to which no specific complaint is made, and their verdict for the plaintiff has established the faofc which prevented the divestiture of the title by the sale in question.

Judgment affirmed.


author: Opinion by Rice, P. J.,

text:
    Commonwealth v. Zayrook, Appellant.

      Criminal law — Pleading—Indictment—Information—Variance.
    A motion in arrest of judgment must be based on some matter appearing on tbe record. A variance between the information upon which the warrant issued and the indictment is not such matter, nor where the defendant has gone to trial without raising the objection is it a valid ground upon which to base a reversal of the judgment upon appeal.
    The fact that three persons mentioned in an information are joined in an indictment with four others not mentioned in the information, is no ground for reversal after a trial on the merits, and when no motion to quash or for a severance has been made before pleading.

      January 13, 1906:
    Argued Dec. 12, 1905.
    Appeal, No. 70, April T., 1906, by-defendant, from order of Q. S. Allegheny Co., June T., 1905, No. 385, refusing to arrest judgment in case of Commonwealth v. John Zayrook.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for conspiracy.
    Motion in arrest of judgment.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in refusing to arrest the judgment.

      John Marron, with him E. J. Smail, for appellant,
    cited: Conner v. Com., 3 Binney, 38; Com. v. Smith, 185 Pa. 553; McCullough v. Com., 67 Pa. 30; Case of Lloyd & Carpenter, 3 Clark, 188.

      Robert E. Stewart, district attorney, W. A. Blakeley and J. L. Wehn, for appellee, were not heard.
   Opinion by

Rice, P. J.,

The appellant, John Zayrook,'with four others, was arrested, and after hearing was held to bail, upon an information charging that on a date, and at a place specified they falsely and maliciously conspired and agreed to kill and do other great bodily harm to the affiant, and to do other unlawful and malicious acts to his prejudice. In due course Zayrook and two of the other defendants named in the information, together with three others not named therein, were joined in one indictment charging in apt terms the substantial offense alleged in the information, and corresponding therewith as to place and date. When the case was called for trial, and the defendants were required to plead, they objected that certain other indictments ought to be tried first, but so far as the record shows they made no other objection. We assume that this objection was overruled, although the record is silent upon the subject. At any rate, the defendants pleaded not guilty, and the trial resulted in a verdict of guilty as to Zayrook, and the two defendants who were included with him in the information, and a verdict of not guilty as to the other defendants. The only matter assigned, for error upon this appeal of John Zayroolc is the overruling of the defendant’s motion in arrest of judgment. It is claimed — adopting the language of the learned counsel for the appellant — that “ it is clear from the variance between the complaint and the indictment that the magistrate heard a complaint for one conspiracy, and the court below tried a bill for a different conspiracy.”

We are unable to assent to the proposition that it is fairly inferable from a comparison of the information with the indictment that the conspiracy charged against the appellant in the former was not the same conspiracy charged against him in the latter; for to charge that A, B and C conspired to do a certain criminal act does not necessarily imply that no others joined with them in the conspiracy. It is to be noticed further that the defendants who were convicted were the three who were included in the information, and who had a hearing upon the charge before the magistrate. Even if the joinder with them in the indictment of four others who were not named in the information might raise a doubt as to the identity of the offense (a point we do not concede) it is not an objection which would be ground for reversal after a trial on the merits, no motion to quash or for a severance having been made before pleading. “ A motion in arrest of judgment must be based on some matter appearing on the record. A variance between the information upon which the warrant issued and the indictment is not such matter. Nor where the defendant has gone to trial without raising the objection is it a valid ground upon which to base a reversal of the judgment upon appeal:” Commonwealth v. Bradley, 16 Pa. Superior Ct. 561. See also Commonwealth v. Gillespie, 7 S. & R. 469; Commonwealth v. Brennan, 193 Pa. 567; Commonwealth v. Schoen, 25 Pa. Superior Ct. 211. We are all of opinion that the appellant has no just cause of complaint against the action of the court in overruling the motion in arrest of judgment.

The judgment is affirmed, and it is ordered that the appellant appear forthwith in the court below and by said court be committed for the term of his imprisonment, which had not expired at the time this appeal was made a supersedeas.


author: Mobbison, J.,

text:
    Brown v. Reber, Appellant.

      Contract — Sale—Delivery of possession — Passing of title — Auction—Securing of purchase money — Horse.
    Where a horse is sold at auction upon the condition that the purchase money shall be paid in cash, or by a note with sufficient security, and the seller retains possession of the horse pending the production of the note with security, and the horse dies in the meantime, the seller and not the purchaser must sustain the loss. Until the note is produced the title does not pass.
    Argued Nov. 15, 1905.
    Appeal, No. 188, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., Sept. T., 1903, No. 52, on verdict for plaintiff in case of Frank M. Brown v. D. L. Reber.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for the purchase price of a horse. Before Ermentrout, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned are all quoted in full in the opinion of the Superior Court.

      Adam B. Reiser, of Reiser & Schaffer, for appellant,
    cited: Hutchinson v. Hunter, 7 Pa. 140; Segrist v. Crabtree, 131 U. S. 287 (9 Sup. Ct. Rep. 687); Wallingford v. Burr, 18 N. W. Repr. 67; Levasseur v. Cary, 3 Atl. Repr. 461; State v. O’Neil, 58 Vt. 140 (2 Atl. Repr. 586); Mason v. Thompson, 35 Mass. 305; Fuller v. Bean, 34 N. H. 290; Kountz v. Hart, 17 Ind. 329; Russell v. Minor, 22 Wend. (N. Y.) 659; Lester v. McDowell, 18 Pa. 91; Harris v. Smith, 3 S. & R. 20; Mitchell v. Zimmerman, 109 Pa. 183; Hand v. Matthews, 208 Pa. 149.

      C. H. Ruhl, for appellee,
    cited : Bowen v. Burk, 13 Pa. 146; Harris v. Smith, 3 S. & R. 20; Mitchell v. Zimmerman, 109 Pa. 183.

      January 13, 1906:
   Opinion by

Mobbison, J.,

This is an action of assumpsit in which the court gave a binding instruction in favor of the plaintiff, and after judgment upon the verdict, the defendant appealed.

On March 11,1902, the plaintiff had a public sale of his farm stock. The'conditions of the sale were as follows: “1. The highest and best bidder shall be deemed the purchaser. 2. All purchases taken collectively which do not amount to $10.00 to be paid cash. 3. All purchases taken collectively which amount to $10.00 and upwards the purchaser shall be entitled to twelve months’ credit, provided he gives his note of hand with approved security, payable at the National Union Bank of Reading, Pa. 4. No goods to be removed until satisfaction be first madel 5. Any person or persons purchasing goods at this sale must comply with the foregoing conditions or give up the goods before the sale is over, and pay any deficiency resulting from a resale of said goods.”

On the day of the sale a horse was put up at auction .and knocked down to the defendant for the price or sum of $140. After the horse was knocked down to him defendant asked plaintiff whether he would be willing to accept his father as surety on the note. Plaintiff replied that he thought so, and defendant said “ you go and look into it and as quick as you are satisfied or as quick as you say so, let me know and I will come and take the horse away.” ■ The following evening, March 12, plaintiff wrote defendant “ to fetch the mare any time and put your father on the note.” This letter was postmarked March 13, and was received by Reber about noon of that day. On the night of the 12th the horse was hurt in the stable from the effect of which it died. This was in the plaintiff’s stable and the defendant had never had delivery or possession of the horse. It is very clear from the evidence that the plaintiff retained the possession and control of the horse after the sale as fully as before the auction. Upon this state of facts the learned court gave a binding instruction in favor of the plaintiff for the full purchase price and interest, amounting to $155.40.

The assignments of error are as follows: “ 1. The court erred in giving binding instructions to the jury in favor of the plaintiff. 2. The court erred in charging the jury as follows: ‘ For the present we think we had better give binding instructions in favor of the plaintiff and have the case argued fully hereafter. We, therefore, instruct the jury to return a verdict in favor of the plaintiff for $140, with interest, $15.40, making a total of $155.40.’ 8. The court erred in directing the jury to find in favor of the plaintiff for the reason that, under the facts in the case, the interpretation of the intention of the parties was for the jury. 4. The court erred in not submitting to the jury the question of the negligent keeping of the horse by the plaintiff after the sale.”

The questions for decision are: 1. Did the auction sale vest such a title in the defendant that he was liable for the purchase price, although the horse was never delivered to him and it died in the possession of the plaintiff, before the defendant had an opportunity to deliver the note and receive the horse? 2. If there was a liability was the court justified in giving a binding instruction, or should the questions raised by the evidence have been submitted to the jury ?

Upon the second question it is very clear that the court was not warranted in directing a verdict for the plaintiff. There was no actual delivery of the property to the defendant and if there was such a constructive delivery as would entitle the plaintiff to recover the purchase price, it necessarily arose out of the evidence of what took place at the sale, and the effect of this evidence was, under proper instructions, for the consideration of the jury. The learned court reached a conclusion that the auction sale vested the title in the defendant, as a matter of law, but we do not think this conclusion can be sustained. The court seemed to rely on 21 Am. & Eng. Ency. of Law (1st ed.), p. 483, namely: “The better doctrine, however, appears to be that the transfer'of title takes place immediately upon the conclusion of the contract, notwithstanding the fact that the transaction is for cash, the seller having a lien for the price which entitled him to retain the possession of the chattel until the price is paid.” This much of the authority is quoted in the opinion of the court, but we find the next sentence following where the court stopped, this : “ And in those jurisdictions in which, when the sale is for cash, payment is held a condition precedent, it has been uniformly held that the seller waives the condition when he makes a complete delivery without expressly reserving title to himself.” The logical result of the above doctrine is that where the seller does not make delivery, he holds the title as security and he does not need to reserve title to himself when the sale has not been consummated by a delivery.

The learned court also cites Bowen v. Burk, 18 Pa. 146, to sustain the position that the title to the horse passed to the defendant. A careful reading of that case and eliminating from it so much of the opinion of Rogers, J., as rests on “ Ross o.u Vendors,” which was not necessary to rule the question before the court, leaves the case holding decidedly to the contrary from the construction put upon it by the court below. What the case really decides is that: “ The evidence put it beyond all reasonable doubt that the property was purchased at the auctioneer’s sale, for the use of the plaintiff; and further, that the goods were delivered, or at any rate-, suffered to go into her possession with the assent and approbation of the assignees, the legal owners. The title, therefore, is perfect, notwithstanding the purchase money remained unpaid; the only remedy of the assignees being against her on her contract.” This doctrine we think is in harmony with all of the Pennsylvania cases when rightly understood.

The learned court also cites Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, but that case expressly holds, “ but the vendor has a lien until the conditions of sale are performed, or until full delivery. The principle that, so long as anything remains to be done to ascertain the price, quantity or quality of the thing sold, the title does not pass.”

The court refers to Woods v. Nixon, 1 Addison, 131, where it was said that, “ if a horse be sold and die in the stables of the vendor between the sale and delivery, the vendor may have debt for the price, the horse being the horse of the buyer from the sale.” That is a very old common pleas decision and we are not bound by it. We assume, however, that the right to recover in that case would depend on the sale and a constructive delivery. It is easy to see how a horse might have been sold and a sufficient delivery to have passed the title, and yet remain in the stable of the vendor.

Lester v. McDowell, 18 Pa. 91, is cited, but that case holds that in case of an executory contract for the sale of personal property, the vendee cannot recover the possession of it unless it was delivered by the vendor. “ To constitute a delivery, there must not only be an actual delivery at the place, but an intent so to deliver, which was to be manifested by the acts and declarations of the owner, and which were facts for the consideration of the jury.”

In Woolsey v. Axton & Son, 192 Pa. 526, there was an agreement to sell and deliver a raft of timber and Mr. Justice Dean, speaking for the Supreme Court (p. 530), said : “Admit that, on inspection Woolsey objected to the quality of some of the sticks and Minor replaced them, then Woolsey signified his acceptance of the raft. That only proves that Minor had complied fully with his part of the contract, and the delivery of the raft would be complete on Woolsey performing his part, the payment of the cash and the delivery of'the note; but until this was done, or Minor waived performance, both title and possession remained in him.”

Now in the case in hand, why did not both title and possession remain in the plaintiff until the defendant produced the note and the horse was delivered ?

In Harris v. Smith, 3 S. & R. 20, Gibson, J., said: “ As to the delivery to the defendant, it is very clear that the property was not changed by it. If a vendor rely‘on the promise of a vendee to perform the conditions of the sale and deliver the goods absolutely, the right of property will be changed, although the conditions be never performed.”

In Mitchell v. Zimmerman, 109 Pa. 183, it was said by Mr. Justice Clank (p. 186) : “ It is certainly true, as we have said, that under the terms of the auction sale as verbally announced by the auctioneer, title would not pass to a purchaser until the price was paid or properly secured; the giving of a note with security or actual payment of the price, was made a condition precedent of the sale.”

In Hand, Appellant, v. Matthews, 208 Pa. 149, it was held as stated in the syllabus : “ On a sale of goods, where there is no agreement as to credit and there has been no actual delivery, the title will not pass to the purchaser, until the purchase money has been .paid. This rule applies to auction sales.”

In Welsh v. Bell, 32 Pa. 12, it was held (p. 18): “ The contract having been to sell for cash, payment of the whole price was a necessary requisite to a change of the ownership, so long as the possession remained in the vendor.” This was said of a sale of personal property for cash, and we cannot see how it differs, in principle, from a sale for an indorsed note to be procured and delivered, the vendor retaining possession of the horse in the meantime.

In Benjamin on Sales (American Edition), sec. 866, it is said that: “Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” See also Segrist v. Crabtree, 131 U. S. 287 (9 Sup. Ct. Repr. 687).

We doubt, under the facts in the present case, whether the plaintiff presented a case entitling him to go to the jury. But we are only asked to reverse the case because the court withdrew it from the jury. The third assignment of error is a clear concession that the facts in the case were for the interpretation of the juyy as to the intention of the parties.

The first, second and third assignments of error are sustained. We do not think there was sufficient evidence to require the court to submit the question raised by the fourth assignment to the jury.

The judgment is reversed with a v. f. d. n.


text:
    Berks County v. Linderman, Appellant.

      Public officers — County commissioners — Compensation—Statutes—Repeal— Acts of March 30, 1869, P. L. 581, and May 7, 1889, P. L. 109.
    The Act of May 7, 1889, P. L. 109, fixing the compensation of county commissioners within the commonwealth, does not repeal the local Act of March 30, 1869, P. L. 581, relating to Berks county, and fixing the compensation of county commissioners in that county at 1500 per annum. The general act only repeals local laws fixing a rate per diem compensation less than is provided in the act of 1889.

      Constitutional law — Title of act — Act of May 7, 1889, P. L. 109.
    The Act of May 7, 1889, P. L. 109, entitled “An Act regulating the compensation of county commissioners within this commonwealth,” sufficiently indicates in its title the purpose of section 3 of the act which reads “all local laws fixing a per diem compensation, less than is provided in this act, be and the same are hereby repealed.”

      Public officers — County commissioners — Compensation—Statutes—Repeal— Acts of March, 30, 1869, P. L. 581, and May 5, 1897, P. L. 42.
    While it is true that the Act of May 5, 1897, P. L. 42, repealed so much of the Act of March 30, 1869, as fixed the annual compensation for the commissioners of Berks county, and that the Act of May 7, 1889, P. L. 109, went into full force in that county, commissioners who were elected and went into office prior to the act of May 5,1897, are not entitled to reap the benefit from the repeal of the local act, since the constitution prohibits the increase or diminishing of salaries of public officers after their election or appointment.

      Public officers — Compensation—County commissioners.

      County commissioners are not entitled to use the public moneys in paying their expenses in attending a county commissioners’ convention in another city in the State.

      County auditors — County commissioners — Notice—Res adjudicata.

    Where county auditors meet, and pass upon reports of county commissioners submitted to them, although the commissioners are not summoned, and do not appear, and subsequently the commissioners move the court to strike off portions of the report, and pending this motion, appeal from the county auditor to the common pleas, the county commissioners cannot thereafter complain that they were not summoned to appear before the auditors. In such a case where it appears that the court refused the motion to strike off so much of the report as charged the commissioners with a sum of money, it will be deemed on the appeal to the common pleas that the question of notice to the commissioners was adjudicated in the disposition of the motion to strike off portions of the report.
    Argued Nov. 15, 1905.
    Appeal, No. 206, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., June T., 1901, No. 69, on verdict for plaintiff in case of Berks County v. George K. Linderman.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from report of county auditors.
    Feigned issue to determine liability of defendant to the county for certain moneys claimed by the county. Before Ermentrout, P. J.
    The court gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others were in refusing motion to strike off surcharges in report, and in giving binding instructions for plaintiff.
    January 13, 1906:

      Stephen M. Meredith and William J. Rourke, for appellants.
    Under the act of April 15, 1834, to give to the report of county auditors of a balance due by the commissioners, etc., the effect of a judgment, the officer charged must be summoned to appear at the audit: Wilson v. Clarion County, 2 Pa. 17 ; Black-more v. Allegheny County, 51 Pa. 160; Brown v. Com., 2 Rawle, 40; Schuylkill County v. Minogue, 160 Pa. 164; Westmoreland Co. v. Fisher, 172 Pa. 317.
    The title to the act of 1889 gave no notice or intention of any partial and limited repeal of any local acts, and, therefore, is misleading: Brown’s Estate, 152 Pa. 401.
    The title to an act should be so certain as not to mislead: Dorsey’s Appeal, 72 Pa. 192; Beckert v. City of Allegheny, 85 Pa. 191; Com. ex rel. v. Samuels, 163 Pa. 283; Rogers v. Manufacturers’ Improvement Co., 109 Pa. 109; Com. v. Hazen, 207 Pa. 52; Com. v. Kebort, 212 Pa. 289.

      W. B. Bechtel, with him C. S. Shatters, for appellee.
    — As tbe regularity of the proceedings has not been questioned it is submitted that the appeal should be quashed: Gifford v. Erie County, 142 Pa. 408; Com. v. Lloyd, 2 Pa. Superior Ct. 6; Guldin v. Schuylkill County, 149 Pa. 210.
    Jurisdiction and alleged defect in procedure must not be confounded : Godshalk v. Northampton County, 71 Pa. 324; Brown v. Com., 2 Rawle, 40.
   Opinion by

Morrison, J.,

This appeal by the defendant, and the appeal of Charles E. Stangier from the same court to No. 207, October Term, 1905, involve precisely the same questions and, while this opinion will be filed in No. 206, what is said in it is intended to apply to both cases.

The defendants were elected commissioners of the county of Berks on November 3, 1896, for the term of three years and they were inducted into office on the first Monday of January, 1897, and continued in office until the first Monday in January, 1900.

The appellants claimed compensation under the provisions of the Act of Hay 7, 1889, P. L. 109, fixing the compensation of county commissioners within this commonwealth. This is a general act. At the time the appellants went into office the local Act of March 30, 1869, P. L. 581, was in full force in Berks county, and it fixed the compensation of county commissioners at $500 per annum. That act was not repealed by the act of May 7, 1889, supra: Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6; Same v. Same, 178 Pa. 308. The very plain reason why the repealing section of the act of May 7, 1889, does not repeal the local act of March 30, 1869, is that the latter act fixes the compensation of county commissioners of Berks county at $500 per annum, and the repealer in the act of 1889 only repeals local laws fixing a rate of per diem compensation, less than is provided in the act of 1889. Under the local law the commissioners of Berks county were not entitled to per diem compensation. It is, however, argued that sec. 3 of the act of 1889 is unconstitutional and void. We can see no merit in this contention. The title is: “ Regulating the compensation of county commissioners within this commonwealth.” The purpose of the act is to provide per diem compensation for county commissioners. In our opinion, sec. 3 which reads : “ All local laws fixing a pen diem compensation, less than is provided in this act, be and the same are hereby repealed,” is in strict harmony with the act and it is sufficiently indicated by the title. It is further contended that the Act of May 5, 1897, P. L. 42, repealed the local act of 1869, in Berks county, and, therefore, the act of 1889, went into full force in that county. It is true that the act of May 5, 1897, repealed so much of the act of March 30, 1869, as fixed annual compensation for the commissioners of Berks county; but the defendants were elected and went into office prior to the passage of the act of May 5, 1897, and, therefore, they could reap no benefit from the repeal of the local act because of article III, sec 13, of the constitution of this commonwealth, viz.: “ No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.”

We are of opinion that, upon the merits, the county auditors and the learned court below were clearly right in surcharging the defendants with the respective amounts which they drew from the county over and above the salary fixed by the local law in force in Berks county. Nor do we think there is any error in refusing to allow the appellants the money used by them in attending state conventions. We know of no law authorizing the county to pay such expenses. And, indeed, it is practically conceded at the argument that this was an improper expenditure of the county funds.

The remaining question requiring consideration is the jurisdiction of the auditors, and the court below on appeal from their report. As to the jurisdiction over the subject-matter, there is not the slightest doubt. Such jurisdiction is clearly conferred by the Act of April 15, 1834, P. L. 537. But the contention is that the appellants were not summoned to appear before the auditors. That they did not appear and, therefore, there was a lack of jurisdiction of their persons. It is very clear that the auditors did meet, at the proper time and place, and attempt to settle and adjust the accounts of the appellants in accordance with law; that they made their report in writing and filed the same in the court of common pleas ; that appellants filed petitions and moved the court to strike off so much of the reports as charged them with money; that pending rules to show cause on these petitions, the appellants and the county appealed from the county auditors’ report to the court of common pleas, and these appeals were duly entered and issues framed, and the cases tried and judgments entered therein, and these are the judgments from which the present appeals were taken.

The ground on which the appellants asked the court to strike off the auditors’ report is that they were surcharged without notice. On argument and consideration the court discharged the rules to strike-off, holding, in substance, that the auditors had jurisdiction and therefore the rules were discharged. It should not be overlooked that the appellants appealed to the court of common pleas while their motions and rules to strike off the auditors’ report were pending and undecided. In addition to this it appears by the replication to the appellants, pleas to the jurisdiction of the court, that they claimed compensation, by statements presented to the auditors, in accordance with the provisions of the act of 1889, supra.

An examination of the record does not disclose any serious

denial, on the part of the appellants, to the averment in the replication that they presented their statements of claim to the auditors. It is true this is denied by way of argument and perhaps in a very guarded manner otherwise. In view of the condition of this record, we think it comes with bad grace for the appellants to now deny that they had knowledge that the auditors were settling their accounts and that they claimed compensation at the rate of $3.50 per diem before the auditors. So far as we are aware it has never yet been held that the auditors’ report must show, on its face, that the officers whose accounts were settled had notice. But clearly' such showing of notice is not necessary where the officers appealed from the auditors’ report to the common pleas. In Godshalk v. Northampton Co., 71 Pa. 324, it was said by the Supreme Court: “ The record shows that a paper purporting to be the auditors’ report, was filed in the prothonotary’s office, among the records of the common pleas, on March 23, 1868, and that the defendant appealed from it on May 11, 1868. But it is contended that the paper from which the defendant appealed not only does not purport to be an auditors’ report, but that it has not a single earmark of such report except that it is signed by the county auditors. If it was not a report of the auditors, why did the defendant appeal from it ? The appeal is an admission that the paper filed by the auditors was their report, otherwise the defendant not being affected by it had no right to appeal .... and that their report thereof, though in some respects defective, Wilson v. Clarion Co., 2 Pa. 17, was sufficient to warrant the appeal, and give the common pleas jurisdiction of it.”

“The law and justice of the case are clearly with the county. Public officers should be held to a strict and rigid accountability, and in no case should charges for services exceeding the compensation allowed by law be sanctioned or tolerated.”

In Brown v. The Commonwealth, 2 Rawle, 40, it is said by the Supreme Court (p. 44): “ If no notice was given to him, and the report had been made and filed, and no appeal, and an execution had issued, the court, on application, would have set it aside. The principle is universal in this country, that no man’s person or property can be affected by a judgment, of which he had not actual or legal notice; but, where he appeared, and appealed, and the whole matter was in court taken up anew, he, at the trial, was in the same situation as if he had appeared before the auditors; and, in judging of the proceedings in court, where he did appear, we are confined to those proceedings.

“ But I am by no means satisfied he had not notice. The auditors were not examined in court. This point was not directly made there, perhaps not mentioned; and, from many parts of the case, I would infer that he had notice, and refused to attend.”

This case seems to be clear authority that the notice might have been shown by evidence at the trial, in court. Moreover, it is clear authority that by appealing from the auditors’ report, jurisdiction was conferred on the common pleas.

Westmoreland County v. Fisher, 172 Pa. 317, is cited to sustain the position that want of jurisdiction can be taken advantage of at any stage of the proceedings. There is no doubt about the soundness of this doctrine but, in our opinion, the appellants have not succeeded in showing a want of jurisdiction. The auditors had jurisdiction of the subject-matter, and if the appellants presented their claims for compensation under the act of 1889 to the auditors, there can be no doubt of the jurisdiction of their persons, and we have already seen that by appealing to the common pleas they gave that court jurisdiction.

The learned counsel cite Schuylkill Co. v. Minogue, 160 Pa. 164, and seem to rely upon it. But that case has no application to our question. There the auditors had no jurisdiction, either of the person charged or of the subject-matter. What is there decided is that an appeal will not have the effect of making a void judgment, either a voidable or a valid one.

In Gifford v. County of Erie, 142 Pa. 408, the Supreme Court held, as stated in the. syllabus: “ The regularity of the proceedings not being questioned, the judgment of the court of common pleas entered on a verdict in án issue directed on an appeal from the report of county auditors, under sec. 56, Act of April 15, 1834, P. L. 537, is final, and not reviewable in the Supreme Court.”

In Dunmore Borough School District v. Wahlers, 28 Pa. Superior Ct. 35, we held that on appeal from a judgment of the court of common' pleas, a general exception to the judgment against the accounting officer is not sufficient to entitle such officer, in the appellate court, to a review of the entire ease upon the merits, or to a review of the judge’s findings of fact and his conclusions of law based thereon, which were not specifically excepted to. And we quashed the appeal. See also Dunmore Borough School District v. Wahlers, 28 Pa. Superior Ct. 39, where we held as follows : Where the court of common pleas allows an appeal nunc pro tunc from a report of borough auditors, on the accounts of a school district treasurer, and an exception is filed to the allowance of the appeal nunc pro tunc, the appellate court, under the Act of May 11, 1901, P. L. 185, may review the question raised by the exception.”

It is very plain that without the act of 1901 the appellants would not be entitled to have the merits of the cases under _ consideration reviewed by tins court, and where the proceedings seem to be regular no questions can be reviewed on appeal here, except such as are specifically excepted to in the court below.

An examination of the records in the cases under consideration show that these appeals might well be quashed under the authorities cited. But, having considered the merits of the cases, and finding no serious error therein, we have concluded not to quash.

The whole ground upon which we are asked, to sustain these appeals is the want of notice to the appellants by the auditors. But the defendants before appealing attacked the auditors’ report, which had been filed in the common pleas, and had in effect become a judgment against the officers charged. This attack was by moving to strike therefrom so much of the report as charged appellants with any sum of money. The learned court passed upon this motion and refused it, and to this ruling the appellants did not except, nor did they appeal therefrom. Therefore, the questions raised in the motions to strike off are.now res adjudicata and cannot be reviewed in this appeal. It is to be presumed, in this collateral attack, that the learned court below was satisfied that the appellants were notified and that the auditors had jurisdiction. That this is a collateral attack is clear, because the present appeals are from the judgments of the court in the issues framed and tried under the appeals from the auditors’ report.

It is contended that the issues tried in the court below were not made in the appeals taken by the county commissioners, but in those taken by the county. But this is immaterial. The appeals by either party brought the whole report before the court, and when the issues were framed and the cases tried it is not of the slightest importance whether the basis of the issues is the appeals taken by the county or by the officers.

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


text:
    Berks County v. Stangier, Appellant.
    December , 1905:
    Argued Nov. 15, 1905.
    Appeal, No. 207, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., June T., 1901, No. 70, on verdict for plaintiff in case of Berks County v. Charles E. Stangier.
    Before Rige, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
   Opinion by

Morrison, J.,

For the reasons given in opinion this day filed in County of Berks v. George K. Linderman, ante, p. 119, the assignments of error are all overruled and the judgment is affirmed, in No. 207, October Term, 1905.