author: Orlady, J.,

text:
    Distasio v. United Traction Company, Appellant.
    February 28, 1908:

      Negligence — Street railways — Infant—Speed—Province of court and jury — Contributory negligence of parents.

      In an action against a street railway company to recover damages for the death of a boy' four years old run down by an electric car, the case is for the jury and a verdict and judgment will be sustained, where the evidence tends to show that the accident occurred at an intersection in clear daylight with an unobstructed view of the street, that the motorman did not sound his gong or bell, that the car was going more than eight miles an hour in a populous section, that the car was stopped within six or eight feet from the point where the child was struck, and that if the motorman had been alert the accident would not have happened.
    Parents who are poor cannot be charged with contributory negligence in allowing a boy four years old to go on the public street accompanied by a brother of the child, eleven years old.
    Argued Nov. 12, 1907.
    Appeal, No. 17, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., Nov. T., 1905, No. 34, on verdict for plaintiff in case of Daniel Distasio v. United Traction Co.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of a boy four years old. Before Endlich, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $968.50. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      C. H. Ruhl, with him J. Milton Miller and R. L. Jones, for appellant.

      Frederick W. Nicolls, for appellee.
   Opinion by

Orlady, J.,

The plaintiff recovered a verdict in the court below as damages for the death of his four year old son, who sustained fatal injuries by being struck by one of the defendant’s cars in the city of Reading. The accident occurred at the intersection of Eighth and Chestnut streets in clear daylight, with an unobstructed view of the track and its immediate surroundings. The negligence alleged is that the motorman approached the crossing carelessly and inattentively, at an undue and unusual rate of speed, without sounding the bell, or giving any other warning, thus failing to obey the rules and regulations of the defendant in regard to occupying the tracks at crossings. The plaintiff’s son with six or eight other children was playing on the pavement, and from some cause not clearly explained, the little fellow started to cross the tracks in a diagonal manner, by running in the direction in which the car was moving, to the corner opposite where he and his playmates had been standing. The motorman was at his proper place, and the car was stopped within six or eight feet after the child was struck by the corner of the fender of the car. On the trial below the contention was that the plaintiff had not shown any negligence on the part of the defendant entitling him to recover, and that under all the evidence the verdict should be directed for the defendant, who offered no proof, relying on the motion for a nonsuit which was overruled by the court. A number of witnesses were examined, and while there is some confusion in their description of the particulars immediately preceding the collision with the child, the vital questions of the speed of the car, the exact point the boy started from, and the distance he ran before entering on the track, the attention the motorman gave to viewing the track at the crossing, the fact that the gong or bell was not sounded when the crossing was approached by the motorman, all these made the motorman’s negligence a question for the jury to pass upon. Other objects were in view which it is urged would reasonably attract the attention of the motorman, and the evidence shows, or at least the jury would be warranted in finding, that he did not make any effort to stop the car until his attention was called to the impending danger to the child by the cries of bystanders when, as above stated, the car was stopped within eight or ten feet of the point where the collision occurred. The loop or turn the car was expected to make within its given schedule time was established by competent proof, and the distance of somewhat less than four miles, with forty-eight street crossings intervening, fixed with reasonable certainty the time the defendant expected the car to cover its schedule distance, as about one half an hour. This of course would not be conclusive of the rate of speed of the car at the time the accident occurred, but with the other testimony that the car was running faster than usual, it was at least for the consideration of the jury. In fixing the rate of speed, always a vexed and uncertain matter, the schedule in force would make it practically four miles in thirty minutes, or eight miles an hour, which in P. & It. R. R. Co. v. Long, 75 Pa. 257, was held of doubtful compatability with safety in passing through the streets of a populous town. The testimony received and objected to under the first and second assignments of error we understand as bearing on the question of the speed the company itself expected the motorman to make; and under the evidence, whether the speed of the car was unusual and unreasonable, whether the motorman was alert and attentive to his duties and had the car- under proper control, or whether it was not going faster than ordinarily, were properly submitted to the jury, particularly in the light of the rule issued by the company to its motormen that “in approaching street intersections and public or private driveways” the gong must be sounded and speed reduced. A careful analysis of the testimony leaves these purely questions of fact, depending on the evidence adduced from the eyewitnesses to the accident, and from which the jury would be justified in finding that the motorman was not looking at the crossing as he approached it. The rulé on this subject has been so frequently announced that there can be no doubt of the duty of the motorman in approaching a street crossing, or of his duty when he sees children or travelers about to enter upon the track, and it can reasonably be argued that had the motorman been alert according to the circumstances he would necessarily have seen this child running in the direction of the track, and should have known that his car would intercept him before he could cross in safety: Karahuta v. Traction Company, 6 Pa. Superior Ct. 319; Conner v. Pittsburg Railways Company, 216 Pa. 609. While the child was but four years of age, he was in the charge of an elder brother aged eleven. The parents were poor, and the presence of the mother was necessary in the home where her duties required her to be. It could not be expected that children should be continually kept within the walls of the house, and as stated by Judge Sharswood in P., A. & M. Ry. Co. v. Pearson, 72 Pa. 169, “ to say it is negligence to permit a child to go out and play without it is accompanied by a grown attendant, would be to hold that free air and exercise should only be enjoyed by the wealthy, who are able to employ such attendants, and would amount to a denial of these blessings to the poor.” Under the authority of Hoon v. Traction Company, 204 Pa. 369, Del Rossi v. Cooney, 208 Pa. 233, the circumstances in the life of the parents were properly received in evidence, and the age of the caretaker and protector of the .child come within the requirements as fixed by a number of our cases: Harkins v. Traction Company, 173 Pa. 146; Woeckner v. Erie, etc., Company, 182 Pa. 182. We cannot agree with the contention so zealously made by appellant’s counsel that the evidence shows clearly that the child ran into the car, and that the accident could not have been avoided had the motorman been diligent in proportion to his surroundings. The place of the accident required him to observe every possible precaution. The intersection of much used streets in a' populous city and the presence of a number of children on the street near to his track, his view unobstructed from eighty to 100 feet, and this child approaching the track diagonally for a distance of at least fifteen feet, and his ability to stop the car within eight feet after the collision occurred, made it specially a case for the jury to say whether he did not cause the accident. The cases of this kind where it is for the court to direct the verdict are confined to those in which the uncontested evidence leads to the conclusion that the child ran in front of the car so quickly and under such circumstances that the driver or motorman had no reasonable ground to apprehend such action, and no time after it to avoid the collision: Oster v. Schuylkill Traction Company, 195 Pa. 320; Jones v. United Traction Company, 201 Pa. 344; Conner v. Pittsburg Railways Company, 216 Pa. 609. The assignments of error are not sustained and the judgment is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Commonwealth ex rel. v. Bowman.

      Constitutional law — Title of act — Amendment of act — Uniformity of taxation — Local and special legislation — Road law — Turnpikes—Act of April 20, 1905, P. L. 237.
    The Act of April 20, 1905, P. L. 237 relating to care of condemned turnpikes, is not unconstitutional as violating the third section of article III of the constitution relating to the titles of acts; nor as violating the sixth section of article III of the constitution relating to the revival or amendment of acts; nor as violating the first section of article IX of the constitution relating to uniformity of taxation; nor as violating section 7, article III of the constitution relating to special and local legislation.
    Argued Nov. 1, 1907.
    Appeal, No. 2, March T., 1908, by defendants, from judgment of C. P. Cumberland Co., Sept. T., 1906, No. 197, sustaining demurrer to answer to petition for mandamus in case of Commonwealth ex rel. District Attorney v. J. Van Bowman .et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Demurrer to answer to petition for mandamus.
    The opinion of the Superior Court states the case.

      Error assigned was judgment .sustaining demurrer to answer to petition for mandamus.

      M. F. Thompson and S. B. Sadler., for appellant.
    — If the title misleads or fails to give notice of the relief of the township from the burden of maintenance, and the imposition of this burden upon the county, then the act cannot be sustained: Dailey v. Potter County, 203 Pa. 593; In re Road in Borough of Phoenixville, 109 Pa. 44; Quinn v. Cumberland County, 162 Pa. 55.
    Whenever a law really extends or amends the provisions of a previous statute, the rule is strictly enforced, and there must be a full enactment: Pittsburg’s Petition, 138 Pa. 401; Titus-ville Iron Works v. Keystone Oil Company, 130 Pa. 211.
    If the necessary tax for the repair of these roads by the county falls unequally on the taxpayers, then the tax cannot be considered uniform, and the act bringing about this result is unconstitutional: Banger’s Appeal, 109 Pa. 79; Juniata Limestone Co. v. Fagley, 187 Pa. 193; Cope’s Estate, 191 Pa. 1.
    This provision would give the commissioners of the various counties the right to immediately take charge of the portion of the turnpike within a township and repair it, or would give, at the election of the commissioners, the right to proceed to declare the abandoned turnpike a county road, under the Act of June 26, 1895, P. L. 336, which requires action by the commissioners, grand jury and the court. If such an opinion is given, then it is contended that the act is unconstitutional for this reason: Frost v. Cherry, 122 Pa. 417; Commonwealth v. Denworth, 145 Pa. 172.

      F. E. Beltzhoover, with him T. Ralph Jacobs, for appellees.
    — The title of the act is not defective: Blood v. Mercelliott, 53 Pa. 391; Railroad Company’s App., 77 Pa, 429; Gas & Water Co. v. Downingtown Borough, 193 Pa. 255; Dailey v. Potter County, 203 Pa. 593; Franklin v. Hancock, 204 Pa. 110; Bridge-water Borough v. Bridge Co., 210 Pa. 105; Com. v. Meads, 29 Pa. Superior Ct. 321; Allegheny County Home’s Appeal, 77 Pa. 77; Com, v. Fisher, 213 Pa. 48; Middletown Road, 15 Pa. Superior Ct. 167.
    The act is not a local or special law: Coal Company’s Appeal, 164 Pa. 44; Evans v. Phillipi, 117 Pa. 226; Stegmaier v. Jones, 203 Pa. 47; Com. ex rel. v. Brown, 210 Pa. 29; Com. ex rel. v. Middleton, 210 Pa. 582; Pittsburg’s Petition, 217 Pa. 227; Middletown Road, 15 Pa. Superior Ct. 167; Coal Company’s Appeal, 164 Pa. 44.
    The act does not violate the provisions of the constitution requiring uniformity of taxation: Kelly v. Pittsburg, 85 Pa. 170; Com. v. Canal Co., 123 Pa. 594; New Castle v. Cutler, 51 Pa. Superior Ct.' 612; Middletown Road, 15 Pa. Superior Ct. 167.
    February 28, 1908:
    The act is not an amendment of the eleventh section of the act of 1887 within the inhibition of section 6, article III, of the constitution: Derry Township Road, 30 Pa. Superior Ct. 538; Searight’s Estate, 163 Pa. 210; In re Greenfield Avenue, 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; Incorporation of Boro, of Emsworth, 5 Pa. Superior Ct. 29.
    The act does not extend the provisions of the act of 1887, by altering the construction of its terms: In re Greenfield Avenue, 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; Borough of New Brighton v. Biddell, 201 Pa. 96; James Smith Woolen Machinery Company v. Browne, 206 Pa. 543; Getz v. Brubaker, 25 Pa. Superior Ct. 303; Hood v. Norton, 202 Pa. 114.
    The language of the act plainly does not impose two duties upon the county commissioners between the discharge of which they can elect and if the act did do so they would be bound to discharge the one which is mandatory. But the word “ or ” must be read “ and ” to give proper effect to the act and sub-serve the clear intention of the law makers: Menoher’s Estate, 18 Pa. Superior Ct. 335; Murray v. Keyes,.35 Pa. 384; Rolland v. Com., 82 Pa. 306; Kelley v. Kelley, 182 Pa. 131; Dumont v. United States, 98 U. S. 142; Dwarris on'Statutes, 772; Rolland v. Com., 82 Pa. 306; Murray v. Keyes, 35 Pa. 384.
    All presumptions are in favor of the constitutionality of an act of assembly: Craig v. First Presbyterian Church, 88 Pa. 42; Sharpless v. Mayor, 21 Pa. 147; Pa. R. R. Co. v. Riblet, 66 Pa. 164; Powell v. Com., 114 Pa. 265; New Era Life Assn. v. Musser, 120 Pa. 384; Fletcher v. Peck, 10 U. S. 87, 128.
   Opinion by

Henderson, J.,

The appellants except to the decree of the court below on the ground that the act of assembly under which the proceeding was instituted is unconstitutional. The first objection is that its title is defective and, therefore, repugnant to the third section of article III, of the constitution. The title is “An Act to provide for the repair and maintenance or improvement, by the proper county, city or borough, of turnpikes heretofore or hereafter appropriated or condemned, or any part thereof, for public use free of tolls.” Then follows the enactment of the first section “ that when any turnpike, or part thereof, has been, or may thereafter be, appropriated or condemned for public use, free of tolls, under any existing laws, and the assessment of damages therefor shall have been paid by the proper county, such turnpike, or part thereof, shall be properly repaired and maintained at the expense of the county, city or borough in which the turnpike, or part thereof, lies.” There is certainly no such omission to set forth in the title the subject of the act as brings it under the constitutional prohibition. It would be a superfluous repetition to engage in the discussion of this question. Many cases hold that it is sufficient if the title fairly gives notice of the real subject so as to reasonably lead to an inquiry as to what is contained in the body of the act. Some of the later cases are: Franklin v. Hancock, 204 Pa. 110; Bridgewater Borough v. Bridge Co., 210 Pa. 105; Middletown Road, 15 Pa. Superior Ct. 167; Com. v. Meads, 29 Pa. Superior Ct. 321. Courts approach the consideration of the constitutionality of a statute with the desire and duty to sustain it, if that be practicable, and its invalidity must very clearly appear before that fact will be declared. All of the provisions of the act under consideration except the repealing clause are contained in the first section. The title not only directs attention to the subject of the act, but is a full syllabus of it and contains about one-third of the number of words found in the statute. The act has but one subject; that is, the maintenance of certain highways by the county, city or borough where such highways exist and this is set forth more fully and clearly in the title than is usual, and much more so than in many statutes whose constitutionality in this respect has been sustained by the Supreme Court.

It is further objected that the act is in violation of the sixth section of article 3 of the constitution, which prohibits the revival, amendment or extension of any law by reference to its title alone. The argument is that the áct is merely a part of a system devised for opening toll roads for the use of the public and is an amendment to the eleventh section of the Act of June 2,1887, P. L. 306. The answer to this is that the statute is in form and legislative intention a new law covering the whole subject and changing the legislation of the act of 1887. It is complete in itself. Its meaning's apparent on its face and it does not require the re-enforcement of any other statute to give it effect. Such an act does not violate the constitution though it may operate to alter or repeal a prior act: Searight’s Estate, 163 Pa. 210; Greenfield Ave., 191 Pa. 290; Emsworth Borough, 5 Pa. Superior Ct. 29. A casual glance at the statutes will disclose the evolution of the law on many subjects brought about by independent enactments incorporating new provisions which in effect amended previous legislation on the same subjects, but it never was supposed that such enactments could only be made constitutional by connecting them in terms with prior legislation. The second section repeals' all inconsistent acts and there is no foundation for the position that there is an amendment within the constitutional provision referred to.

It is further contended that the act violates the first section of article 9 of the constitution which demands uniformity of taxation. This objection is 'met by the reply that the subject of the statute is not one of taxation at all. There is no constitutional obligation on any municipal district to maintain public highways. The duty is imposed by statute and it is a matter of legislative discretion whether a highway shall be maintained by the county or by the local municipal district. It is not a matter of legal concern to the taxpayers of a borough or city that the county assumes the cost of the maintenance of a public road in a township. A county bridge and the approaches thereto are a part of the public highway often wholly in one township and are erected and maintained at the charge of the county, but no one contends that the township may not be relieved from the cost of such part of a public highway by proper proceedings in the court of quarter sessions. In such a case all of the taxpayers of the county are required to contribute to the erection and maintenance of the bridge which, before it was made a county charge, was a burden upon the local district. Highways are for the use of the public, generally, and if by reason of difficulty of construction or cost of maintenance it is deemed advisable that one of them be constructed or maintained out of the county fund, taxpayers of another township or borough have no standing to object on the ground of inequality of taxation. The cost of the maintenance of roads is necessarily greater in some districts than in others, owing to the larger mileage, the quality of the soil and the topographical conditions. The section of the constitution under consideration does not forbid the legislature to authorize the construction or maintenance of a part or the whole of a public highway at the expense of the county. We think the learned counsel are in error in supposing that any question of equality of taxation is involved in the case.

The contention that the act is local or special legislation is not maintainable. The law is general in its terms and is applicable throughout the commonwealth. Every person is affected by it who is brought within the relations and circumstances provided for. The mere fact that local results may be produced through its operation does' not necessarily render it unconstitutional. A law may by classification or otherwise produce diversity of result and yet be general where the classification is based on a real distinction. It is for the legislature to determine the expediency of the law: Evans v. Phillipi, 117 Pa. 226; Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44; Stegmaier v. Jones, 203 Pa. 47; Com. v. Brown, 210 Pa. 29; Middletown Road, 15 Pa. Superior Ct. 167. Every county similarly situated as to condemned or abandoned turnpikes is within the operation of the statute. None are excluded because of any local condition or circumstance. It is also argued that there is an inconsistent election allowed to county commissioners with reference to the manner of maintaining the road because, of the Act of June 26, 1895, P. L. 336. These acts are not incompatible and relate to different subjects. The latter act provides for the permanent improvement of certain public highways and makes such improved highways county roads. The act of 1905 relates solely to the repair and maintenance or improvement by the proper county, city or borough of appropriated or condemned turnpike roads. If any question of election arose the opinions in Middletown Road 15 Pa. Superior Ct. 167, and Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, fully answer the argument. None of the objections to the constitutionality of the law are sustained.

The decree is affirmed.


author: Head, J.,

text:
    Commonwealth, Appellant, v. The Huntingdon and Broad Top Mountain Railroad and Coal Company.

      Criminal law — Constable’s return — Indictment—Obstruction of highway — Failure to construct substituted road — Railroads.
    Where a bill of indictment is found upon a constable’s return, the offense charged in the bill must be identical with that, the essentials of which, at least, appear in the constable’s return.
    An indictment charging the common-law offense of unlawfully obstructing a public highway cannot be sustained, where the constable’s return, upon which it is founded, charges that the defendant, a railroad company, took and used a public road under the Act of February 19, 1849, P. L. 79, and failed to construct another public road in place of the one taken and used.
    Where a railroad company, having exercised the power conferred upon it to take an existing public highway, refuses at the same time to obey the statutory command to reconstruct another of prescribed character in its stead, it is guilty of a breach of public duty declared by the statute for which it may be indicted and convicted.
    Argued Nov. 1, 1907.
    Appeal, No. 180, Oct. T., 1907, by plaintiff, from order of Q. S. Bedford Co., April T., 1907, No. 16, quashing indictment in the case of Commonwealth v. The Huntingdon and Broad Top Mountain Railroad and Coal Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head.and Beaver, JJ.
    Reversed.
    Indictment for obstructing a public road and for failing to rebuild a public road. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.

      February 28, 1908:

      Errors assigned were in quashing the indictment.

      Alvin L. Little, with him Humphrey D. Tate, district attorney, for appellant.
    — It is a well-established principle of law that when a bill of indictment has been regularly found, it cannot be quashed unless for matter appearing upon the face of the record: McCullough v. Commonwealth, 67 Pa. 30; Commonwealth v. Keenan and Clark, 67 Pa. 203; Commonwealth v. New Bethlehem Borough, 15 Pa. Superior Ct. 158; Commonwealth, Appellant, v. Howells, 18 Pa. Superior Ct. 323.
    This count in the bill of indictment must speak for itself, and if it had been properly found, and if the charge was stated with so much certainty that the defendant knew what it was called upon to answer, and the court how to render proper judgment, that was all that was necessary: Commonwealth v. Keenan and Clark, 67 Pa. 203; Commonwealth v. New Bethlehem Borough, 15 Pa. Superior Ct. 158; Commonwealth, Appellant, v. Howells, 18 Pa. Superior Ct. 323.

      Charles G. Brown, with him John H. Jordan, for appellee.—
    There was no error in quashing first count in the indictment: Commonwealth v. Pavitt, 14 W. N. C. 27; Danville, Hazelton & Wilkesbarre Railroad Co. v. Commonwealth, 73 Pa. 29; Commonwealth v. Pavitt, 14 W. N. C. 27.
    There was no error in quashing the second count in the indictment: Danville, Hazelton & Wilkesbarre R. R. Co. v. Commonwealth, 73 Pa. 29; Wharton’s Criminal Pleading & Practice (8th ed.), sec. 243; Commonwealth v. Wilkesbarre, 1 Kulp, 487.
   Opinion by

Head, J.,

The defendant, a railroad company incorporated under the laws of the state of Pennsylvania, was indicted in the court below upon a bill containing two counts. The indictment did not, as in ordinary cases, result from an information made before a magistrate and a binding over of the defendant for trial. It was founded upon a constable’s return. After the said return had been made the district attorney applied to the court for leave to send up a bill, and an order permitting or directing him to do so was made. The first count charged the defendant with the common-law offense of obstructing a public highway. The second count, after reciting the existence of the highway within the jurisdiction and the right of the public to the use of the same, charged the defendant “with having obstructed and filled up the said ancient public highway under the provisions of the Act of the General Assembly of the Commonwealth of Pennsylvania approved the 19th of February, 1849.” The bill then quotes the thirteenth section of that act and charges that the said defendant, having exercised the power therein conferred to change, in the course of its construction, the site of a public road, “was in duty bound to reconstruct forthwith at their own expense, on the most favorable location, and in as perfect a manner as the original road, that portion of the ancient public way so obstructed and filled up. That notwithstanding the duty to reconstruct forthwith at their own proper expense, on the-most favorable location and in as perfect a manner as the original road, the ancient public way obstructed and filled up as aforesaid, the said defendant has unlawfully and unjustly neglected and refused, and still does neglect and refuse to reconstruct, at their own proper expense, on the most favorable location, and in as perfect a manner ás the original' road, the portion of the ancient public way obstructed and filled up as aforesaid, so that,” etc.

When the case came on for trial the learned court below, on motion made, quashed both counts of the bill and this appeal by the commonwealth followed.

Where a bill of indictment is founded upon a constable’s return, the offense charged in the bill must be identical with that, the essentials of which, at least, appear in the constable’s return. Upon an examination of this return we are satisfied that it furnishes no foundation for an indictment charging the common-law offense of unlawfully obstructing a public highway. On the contrary, it sets forth, with almost the particularity of the indictment itself, the existence of the public highway and the right of the people to pass thereover. That the defendant company began in 1906 the work of improving their line by filling up a trestlework, and in doing so filled up and obstructed the portion of the public road complained of. Further, that the said. defendant attempted to change the location of the said road and to construct another through and under the trestlework, to take the place of the old one obstructed, and that “the new public road so constructed by the said railroad company is not of legal width or as wide as the original road and is not constructed in as perfect a manner as was the original road,” etc. This language of the return clearly indicates, we think, that the act intended to be complained of was not-the unlawful obstruction, of the ancient highway itself, but that it was the failure on the part of the railroad company, after having exercised its statutory right in occupying the site of an existing public road, to reconstruct the same forthwith at their own proper expense, on the most favorable location, and in as perfect a manner as the original road, as the statute enjoined it should do. Where such facts appear in the information or return upon which the indictment is based there is no, warrant for the presentation of a bill charging it with the common-law offense of obstructing a highway. In Danville, etc., Railroad Co. v. Commonwealth, 73 Pa. 29, it was held, quoting from the syllabus, “The legislature may authorize building a railroad on a public road. A railroad company occupying a portion of a public road not .exceeding the extent allowed by law and obstructing public travel on such portion is not guilty of a nuisance.” We think, therefore, the learned court below was right in quashing the first count,of the bill because the offense therein charged is not the offense complained of in the constable’s return.

We ,are unable, however, to see upon what satisfactory reason the judgment of the court below, in quashing the second count, can rest. It is clear that the legislature in the thirteenth section of the act of 1849 quoted in the count, authorized a railroad company, in the erection of its line, to take and use and thus obstruct a public highway. “The power of the legislature to authorize the building of a railroad upon a public road is indubitable. To the commonwealth belongs the franchise of every highway within its limits as a trustee of the public. Every public road therein exists by force only of the commonwealth’s authority.” But in conferring such extensive power upon a railroad company, the legislature, as the price of its gift, enjoined upon such company the obligation to forthwith reconstruct such road on the most favorable location and in as perfect a manner as the original road. As the power conferred is a public one, granted as well for the benefit of the public as the corporation, so the duty enjoined is also a public one, and a breach of such duty is a public offense for which an indictment will lie. This, while not precisely decided in the case of Danville, etc., Railroad Co. v. Commonwealth, 73 Pa. 29, is clearly foreshadowed in the opinion of the court. “The indictment therefore does not charge the plaintiff with neglecting or omitting to reconstruct a road in lieu of the one occupied by the railroad, but with obstructing and stopping up the old public road. The effort is to convict the plaintiff for obstructing the old road by reason of its failing to construct a new one.”

In the same opinion the Supreme Court refers to “Reg. v. The Great North of England Railway Co., 9 Q. B. 314, in which it was held, in an opinion given by the same chief justice (Lord Denman), that a corporation aggregate might be indicted for misfeasance or nonfeasance under the same statute, in not conforming to the powers conferred on the company by act of parliament.”

It therefore seems clear to us that where a railroad company, having exercised the power conferred upon it to take an existing public highway, refuses at the same time to obey the statutory command to reconstruct another of prescribed character in its stead, it is guilty of a breach of public duty, declared by the statute, for which it may be indicted and convicted. The particularity both of the constable’s return and of the second count in the bill, which follows the return, could have left the defendant in no reasonable doubt as to the nature and character of the offense intended to be charged, and it was therefore error to quash that count of the bill.. The second assignment of error is sustained.

The order of the court below quashing the second count of the bill of indictment is reversed and a procedendo awarded. Costs of this appeal to be paid by appellee.


text:
    Koch v. Hinkle, Appellant.

      Mortgage — Assignment—Warranty—Principal and agent — Estoppel.
    Where a mortgagee assigns a mortgage that had already been paid, to another, he becomes liable to the assignee for the amount of the mortgage on the legal principle that the vendor of a chattel impliedly warrants a title to it, and that it is in effect the thing it purports to be.
    Where the mortgagee delivers to another an assignment of the mortgage in blank together with the mortgage and the bond accompanying it, he constitutes such person his agent to fill in the name of the assignee in the assignment, and the assignment is just as effective to bind the assignor as if he had written into it with his own hands the name of the assignee and made personal delivery of the paper.
    The words “without recourse to the assignors” embraced in an assignment of a mortgage have no fixed legal significance. What the parties intended by the use of the words is to be determined by the jury from the consideration of all the circumstances surrounding the transaction.
    Where a mortgagee delivers to an agent an assignment of a mortgage in blank, together with the mortgage and bond, and it appears that such agent had already received payment of the mortgage from the mortgagor without the mortgagee’s knowledge, the assignee whose name is subsequently inserted in the assignment by the agent, may maintain an action against the mortgagee for the amount of the mortgage, and in such action the record of a judgment on a scire facias issued by the assignee against the mortgagor, relieving the latter from liability, is conclusive upon the mortgagee if the jury finds that the mortgagee was notified by the assignee to participate in the scire facias proceedings, and that he actually did participate and direct the course of the litigation.
    Argued November 11, 1907.
    Appeal, No. 231, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., Dec. T., 1902, No.. 44, on verdict for plaintiff in the case of Arlean Koch v. John A. Hinkle.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit by an assignee against an assignor of a mortgage to recover on an implied warranty of title. Before Endlich, J.
    The court charged as follows:
    Early in the month of August, 1897, the plaintiff in this case, Arlean Koch, became the owner of a certain mortgage for $400 by virtue of an assignment executed by the former owner of that mortgage, the defendant in this case, in which assignment the plaintiff’s name appears as the assignee. Subsequently she undertook to collect this mortgage from the parties who had given it; she brought a suit on the mortgage against those parties, but she failed to recover on it on the ground that it had been paid before the date of the assignment that she held. Now she turns around and sues the defendant, the assignor of the mortgage, and asks you to give her a verdict against him for the sum of $400 which the mortgage calls for, together with interest and the court costs amounting to about $30.00 of the unsuccessful action that she brought against the mortgagors.
    You have heard, gentlemen, that when this assignment was executed by the defendant and passed out of his hands the name of the assignee was not in the assignment. In that particular the assignment was in blank.
    [When the defendant delivered the assignment in blank to Griesemer he made Griesemer his agent for the purpose of inserting the assignee’s name and delivering to that assignee the assignment and the mortgage and bonds assigned. Thereupon necessarily the contract became one between the defendant and the plaintiff.] [1]
    On the other hand, it is equally true that the insertion of the plaintiff’s name in this assignment, and her acceptance of the assignment require her to be treated as in every sense a party to the contract with the defendant. She is therefore to be held affecfed with all the terms and stipulations in the assignment according to their true meaning and effect.
    One who assigns a mortgage to another ordinarily warrants that it is a valid obligation for the amount appearing on its face to be due thereon unless he explains the contrary to the assignee, and it is upon the theory that that warranty is a salient part of this agreement that this action against the defendant is brought. You have heard that there is about this assignment peculiarity, viz.: that in its body it is declared to be made “without recourse to the assignors.” You have heard that the defendant asserts that the insertion of this stipulation in. the assignment relieves him of all liability, even though it turned out that the mortgage had been paid and was worthless. You have also heard that the plaintiff claims that this language in the assignment can have no such effect. Now what is the law upon that subject? Possibly you know that when added to an indorsement of negotiable paper, a promissory note, the words “without recourse” have a definite and well-understood meaning, viz.: that the indorser does not guarantee the collection of the paper as otherwise he would be held to do. In an assignment of a mortgage, however, no such promise is involved. Hence in such an instrument the use of the phrase “without recourse” has no such definite legal meaning. The meaning of a phrase or stipulation of that kind inserted in an assignment of a mortgage must depend upon the intention with which the language was used, the sense in which that language was understood by the parties. That meaning, that sense, is a question of fact to be gathered by the jury from all the circumstances surrounding the transaction and bearing upon the meaning of the language as used in the instrument. You will remember what the circumstances were under which this assignment was made. I think there are some undisputed facts about that which I may safely detail to you, but I don’t mean in doing so to say that that is all that the jury may fairly consider as bearing upon the subject. You recall that the defendant had, through his counsel, if I remember rightly, declared a desire that this mortgage should be repaid; that notice to that effect had been given to Griesemer, who had originally brought the application for this loan to the office of the defendant’s counsel, and who in the meanwhile if I remember the testimony rightly, had paid them the interest as it came due with more or less regularity. Then you will recall that it is testified — I know of no contradiction of that — that Griesemer suggested that this mortgage might be assigned, without, however, disclosing to whom, and it seems that the defendant agreed to assigning this mortgage. Then later on after the assignment had been drawn, Griesemer brought a check for the money, if I recall rightly, to the office of the defendant’s counsel and received in exchange for it the papers after having been interrogated, if I remember rightly, as to who the assignee was, and stating that he didn’t know what he was going to do about it, or something of that kind, and requesting that the paper should be given to him with that matter left blank. In the meanwhile the evidence is that Griesemer had received from the mortgagors the amount of $400, which is the sum for which this mortgage had been given. I don’t know whether there is any dispute about that; the jury will remember it, and if so, it will determine what the true fact is. The allegation on the part of the defendant is that he was entirely ignorant of any such transaction, of any payment having ever been made of the principal of this mortgage. I think that the testimony on the part of the defendant’s attorneys in this matter is that there had been some occasional delays about the payment of interest, and that for that reason they were anxious to be relieved of this investment. Now, looking at all of these matters and at anything else that you may see in the evidence which suggests to you a proper bearing upon this question, and considering also the question whether Griesemer was the defendant’s agent or somebody else’s agent in the transaction about this mortgage, what do these facts show to you as to the meaning in which this language “ the assignment is without recourse to the assignors” was used and understood by the parties at the time? If all that was intended and understood was that Hinkle meant that he would not be responsible if the property turned out worth less than the mortgage, then that stipulation has no bearing on this case whatever. If what the defendant was after and what was understood was that he wanted to get rid of all responsibility in connection with the mortgage, every possible liability in respect to it, and if, under the circumstances, that was the meaning the phrase fairly conveyed to his assignee, then you notice that by the very terms of this assignment he would be relieved from the liability which in this case is sought to be fixed upon him, and in that event your verdict would be for the defendant.
    If, however, you do not find that that is the meaning and effect of the clause as it is to be understood under the circumstances of the case, then the important question that you will have to pass upon is, was this mortgage paid before the date of the assignment or was it not? That question has been, as the evidence in this case shows, tried once before, and the record of the case in which it was tried is here and is part of the evidence in this case. The plaintiff claims that that trial settled the question once for all so far as this defendant is concerned, and that the defendant here is bound by the verdict on that trial which declared that the mortgage had been paid before the assignment. The defense, however, says “No, this defendant is not bound by the record, though we admit that that record is prima facie evidence in this case, yet we contend that it is overcome by other evidence and testimony that we have submitted.”
    Now, gentlemen, the law on that question as applicable to the present case is this: The record of the former suit in which that question was tried and the fact that that suit was determined by a verdict which found that the mortgage was paid are at least prima facie evidence of payment of the mortgage against this defendant, if he had knowledge’ and notice of the suit — and that in this case is not denied. But the effect of the record may be very much more than that. If it appears not only that the defendant had knowledge of the pendency of the other action and of the nature of the defense alleged, but that he either actively participated in the management of the suit or of the trial, or had a timely invitation or requirement from the plaintiff to take part in it, or that some notice was given to him by the plaintiff in such manner and under such circumstances as would indicate a desire or willingness on her part that he should assume at least a share of the burden of the management of that suit or trial and would fairly enable him to do so, then the verdict in the other case would be not only prima facie evidence against the defendant, but would be conclusive against him, and would settle the question here in this case against him. You understand that the plaintiff had a perfect right to manage her suit on that mortgage alone without regard to the defendant, the assignor of the mortgage; and it would not be easy to see just how the defendant, without an invitation' from the assignee, suing in her own name, could make himself a participant in the trial with a view to protecting himself by evidence against further liability to the plaintiff, unless the way was open to him to do that, and unless an opportunity was afforded to him to do that in some clear and intelligible way. It is not sufficient, of course, that the defendant had knowledge of the suit, or that he was called as a witness, or even that he was told by Mrs. Koch’s attorneys that he would be held liable if the suit failed. It is not, of course, necessary that there should have been an invitation or a requirement or a request or a demand or a threat in express words insisting upon it that the defendant should come in and take a hand in the trial, either managing it or assisting in the management of it, or that he should employ counsel, and that the counsel should sit with the counsel for the plaintiff, or should take the lead or assist in the management of the trial, examine the witnesses, and so on — that is not absolutely necessary. But what must be shown on the part of the plaintiff in order to make that verdict in the other case settle the question against this defendant here is, taking everything together, considering all the circumstances, all that was said, all that was done — that all that was of such a character as not only to notify the defendant of the existence of the suit and the character and nature of the defense, but to afford him a reasonable and clear intimation that he would be looked to in case the suit might fail and that he was at liberty, had an opportunity, that the Way was open to him to come in and take a hand in conducting the suit against the mortgagors. [It will be for the jury to inquire, under all the facts of this ease — the defendant having admitted that as early as January, 1900, the plaintiff notified him of the pendency of her suit on the mortgage, and that the mortgagors were defending on the ground that they had paid the mortgage before the defendant’s assignment to the plaintiff — whether such notice of the suit emanated from the plaintiff to the defendant under such circumstances' as indicated a willingness on the part of the plaintiff that the defendant should assume at least a share of the burden of disproving payment, and .whether the defendant thereupon conferred with the plaintiff’s attorneys concerning the conduct of the case and attended, at it is unquestioned he did attend, the trial in April, 1900, and testified as a witness on the plaintiff’s behalf, and whether, after judgment for the mortgagors on the verdict, the plaintiff demanded payment from the defendant, and whether the defendant did not request an appeal which he might have insisted upon in that case — taking all those things together, inquiring into all those facts, seeing whether those things are true, and taking everything else together with those things, if you find them to be true, what was said and what was done, did it all fairly import to this defendant a desire on the part of the plaintiff and a willingness on her part that he should come in and take a part in the management of the trial, or did he actually, through himself and through his counsel, take a part in the management of the trial? If you find that to be the truth of the case, then the verdict in that other case would be conclusive against the defendant, and there would be nothing further on that subject for you to inquire into, and your verdict in that event, as a matter of law, would have to be against the defendant and in favor of the plaintiff.] [2] If, as I said before, this stipulation as to no recourse is not decided in the defendant’s ‘favor by you.
    If, however, you find that these things were not of such a character as claimed by the plaintiff here, if you find that there Was not what fairly and reasonably and clearly amounted to an invitation to the defendant to come in and take part in the trial, and if what he did there and what his counsel did there did not amount to a participation in the trial, if it was simply his appearance as a witness called in to testify as to the facts he knew, and if his counsel were there in that relation, then, as I said before, that verdict is simply prima.facie evidence, that is to say, a part of the evidence in this case which it will be necessary for you to consider together with all the other testimony in the case bearing upon the question of whether or not this mortgage was paid before it was assigned.
    Now, gentlemen, the Hinkles tell you that they never got anything in payment of that mortgage; their counsel tell you that they never got anything in payment of the mortgage for the Hinkles. But a party by the name of Griesemer has been mentioned in the evidence in this case as having had considerable connection with that transaction, and although the Hinkles may not have themselves gotten anything, if this mortgage was paid to Griesemer as their agent, if there was payment of this mortgage to Griesemer for the Hinkles and at the same time he was their agent to receive that payment, then it would amount to payment of the mortgage. Therefore the question whether this mortgage was paid will depend not only upon whether the Hinkles or their attorneys got the money for it, but it will depend also upon whether any one else got the money for this mortgage as their agent. You have heard the testimony on the part of the Hinkles themselves disclaiming that they ever employed this man Griesemer as their agent, and that testimony will have to be considered by the jury together with all the other facts that have been given in evidence upon this question. If you believe that Griesemer was the agent of Sheeder and Smith in the transactions between Sheeder and Smith and Jacob and John Hinkle, then the payment of the principal of the mortgage to Griesemer was not a payment to the Hinkles. If you believe that Sheeder and Smith employed Griesemer to procure them a loan and he did procure it from Jacob and John Hinkle, and that after the mortgage and bonds were executed Jacob and John retained the possession of the mortgage, and their attorneys, Rieser & Schaffer, retained the possession of the bonds, and if you further believe that Sheeder and Smith from time to time handed the interest to Griesemer for the purpose of paying it to the mortgagees, and if you further believe that Sheeder and Smith handed the principal of the mortgage to Griesemer that he might pay it to the mortgagees, then you will be warranted in finding that Griesemer was the agent of Sheeder and Smith, and in no proper sense the agent of Jacob and John Hinkle, and then the payment of the money by Sheeder and Smith would not in any proper sense be the payment of the money to Jacob and John Hinkle.
    Now, gentlemen, I have nothing further to say to you about this case except this, that [the question whether Griesemer was the agent of the Hinkles or the agent of Sheeder and Smith in this transaction is one which you will have to pass upon, if you are required to pass upon it at all, under all the facts and testimony in the case that bear upon this question, including the judgment in the suit of this plaintiff against Sheeder and Smith upon the mortgage. But if you find, as I said before, that these people were required and were afforded an opportunity to participate in the suit against Sheeder and Smith, or if they did actually participate in it, then that question would not arise, but that verdict would be binding upon the defendant in this action.] [3]
    Verdict and judgment for plaintiff for $615.82. Defendant appealed.

      Errors assigned among others were (1-3) above instructions, quoting them.

      Jefferson Snyder, of Snyder and Zieber with him Rieser and Schaffer, for appellant.
    — There Was no evidence in the case that would warrant them in finding the appellant concluded by the judgment in Koch’s suit against Sheeder and Smith: Fowler v. Jersey Shore Borough, 17 Pa. Superior Ct. 366; Ayres v. Findley, 1 Pa. 501; Barber v. Wolcott, 15 Pa. 57; Paul v. Whitman, 3 W. & S. 407; Rawle, Covenants for Title (2d ed.), 242; 1 Greenleaf on Evidence, sec. 535; Walker v. City of Phila., 195 Pa. 168.
    A man who purchases and takes an assignment of a mortgage is bound to make inquiry of the mortgagor before purchasing, and is chargeable with notice of any defense by way of payment or growing out of the original equities which inquiry would have brought to his notice: Morgan’s Appeal, 126 Pa. 500.

      Isaac Hiester, with him William M. Goodman, for appellee.—
    Knowledge of a fraud by an agent-is not notice to the principal where the agent is himself the author of the fraud and even if Griesomer had been the plaintiff’s agent the plaintiff was, not chargeable with Griesemer’s knowledge that the mortgage had been paid by means of money embezzled by him: Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa. 327; United Security Life, etc., Co. v. Central Nat. Bank, 185 Pa. 586; Sproul v. Standard Plate Glass Co., 201 Pa. 103.
    The delivery of a promissory note signed in blank constitutes the person to whom it is delivered the agent of the maker to fill in the blanks: Simpson v. Bovard, 74 Pa. 351; Howie v. Lewis, 14 Pa. Superior Ct. 232.
    The general rule is that one who assigns a mortgage to another for a valuable consideration warrants that it is a valid obligation for the amount appearing .on its face to be due thereon unless he explains the contrary to the assignee: Stroh v. Hess, 1 W. & S. 147; Kauffelt v. Leber, 9 W. & S. 93; Flynn v. Allen, 57 Pa. 482; Hossler v. Hartman, 82 Pa. 56; Blattenberger v. Holman, 103 Pa. 555; Moore v. Adams, 29 Pa. Superior Ct. 239.
    These assignments raise the question of the effect of the judgment in the suit of the foreclosure of the mortgage on the liability of the defendant. It seems to be well settled that a judgment in such case is prima facie evidence of the fact established thereby against one secondarily liable whether he had notice of it or not: Ayres v. Findley, 1 Pa. 501; Barney v. Dewey, 13 Johns. 224; Holbrook v. Holbrook, 15 Maine, 9; Robbins v. Chicago, 4 Wallace, 657; Carman v. Noble, 9 Pa. 366; Northumberland County Bank v. Eyer, 58 Pa. 97; Heiser v. Hatch, 86 N. Y. 614; Oceanic Steam Navigation Co. v. Compañía Transatlántica Española, 144 N. Y. 663 (39 N. E. Repr. 360); Somers v. Schmidt, 24 Wise. 417; Missouri Pacific Ry. Co. v. Twiss, 35 Neb. 267 (53 N. W. Repr. 76).
    The liability of the assignor of a mortgage to his assignee arises upon an implied warranty that the mortgage is a valid and subsisting claim against the mortgagor: Stroh v. Hess, 1 W. & S. 147; Flynn v. Allen, 57 Pa. 482.

      February 28, 1908:
   Opinion by

Head, J.,

The plaintiff is the assignee of a mortgage, the title to which she acquired by a formal assignment in writing executed and delivered by the defendant. That she paid a full and valuable consideration therefor is not a matter in dispute. The defendant was one of two mortgagees, but purchased the one-half interest of his brother, the other mortgagee, and thus became, prior to the date of the assignment, the sole owner of the mortgage. At the time of' the assignment the mortgage, with the bonds secured thereby, was in the possession of the defendant, and this possession was transferred with the written assignment to the plaintiff. The record of the mortgage disclosed no evidence whatever of any payment on account thereof. In a word, the mortgage appeared to be a valid and subsisting obligation. Some time later, the plaintiff brought an action of scire facias sur mortgage to recover from the mortgagors the debt evidenced by the mortgage. To this action they took defense on the ground that the mortgage had been paid to the present defendant, then the mortgagee, at a date prior to the assignment. As the plaintiff had not demanded nor received a certificate of-no defense, her action was, of course, liable to be defeated if the mortgagors could establish by evidence their allegation of payment. That case went to trial and resulted in a verdict for the defendants therein, the mortgagors. A motion for a new trial having been refúsed, judgment Was entered on that verdict and no appeal has been taken therefrom.

The plaintiff brings this action then to recover from the defendant the purchase money she paid, together with the necessary expenses she has incurred, by reason of the fact that the thing she purchased was not in fact a mortgage, but only a worthless piece of paper, and her action is grounded on the legal principle that the vendor of a chattel impliedly warrants the title to it and that it is in fact the thing it purports to be. It needs no argument to sustain the proposition that the principle relied on is well established and generally recognized: Flynn v. Allen, 57 Pa. 482; Moore v. Adams, 29 Pa. Superior Ct. 239. If as a fact, the mortgage had been paid to the defendant before he undertook to assign it, the debt secured thereby was extinguished, and the instrument was of no more value than if the names of the mortgagors had originally been forged.

The written assignment, as executed by the defendant, was in blank so far as the name of the assignee is concerned. It was thus executed at the request of one Griesemer, who had been the middle man through whom the original mortgage loan was negotiated, and through whom all subsequent transactions between the mortgagees and the mortgagors had been conducted. It appears that the mortgagees had concluded to take up the money secured by the mortgage. Notice of this fact was communicated to Griesemer for the mortgagors. He produced the money, but requested that the mortgage be assigned, to such person as he would find, instead of being satisfied according to the original desire of the mortgagees. He further suggested, that, as he had not yet arranged with any particuar person to take up the loan, an assignment in blank be drawn up and executed, so that the name of the assignee could be thereafter inserted when the person willing to advance the money should have been found. The defendant Hinkle, the mortgagee, agreed to this request and adopted this suggestion and had his counsel draw up a formal assignment of the mortgage and the bonds secured thereby, which was signed by the defendant and his brother, the other original mortgagee, and duly acknowledged by both. This assignment was by the mortgagee delivered to Griesemer, together with the possession of the original mortgage and bonds. He succeeded in inducing the plaintiff to take the assignment, and after inserting her name in the blanks left for that purpose, he handed to her the assignment together with the original mortgage and bonds.

That in such a transaction the defendant made Griesemer his agent for the delivery of the formal assignment, the mortgage and the bonds, and thus authorized him to insert the name of the plaintiff or other person in the assignment, cannot, we think, be controverted: Simpson v. Bovard, 74 Pa. 351; Howie v. Lewis, 14 Pa. Superior Ct. 232. The assignment, therefore, was just as effective to bind the assignor as if he had written into it with his own hands the name of the plaintiff and personally delivered it to her.

The assignment contains a clause that it' “is without recourse to the assignors.” It is contended that the presence of this clause in the assignment should have the effect of relieving the defendant assignor from any liability of any kind, resulting from the fact that he undertook to sell and transfer a mortgage which had in fact been paid. To this we cannot assent. An examination of the authorities reveals that such words, embraced in an assignment of a nonnegotiable instrument, have no fixed legal significance: Charnley v. Dulles, 8 W. & S. 353; Frazer v. D'Invilliers, 2 Pa. 200; Hexter v. Bast, 125 Pa. 52. As was said in the last cited case, “They are important only as they may indicate the understanding of the parties that the plaintiff should take the mortgage subject to every risk, as well the insolvency of the parties, as the validity of the mortgage itself.” Following precisely in the path marked out by these decisions, the learned trial judge instructed the jury to determine, from all the facts and circumstances in evidence, whether or not, by the presence of these words, the parties at the time intended it to be understood that the assignee was to take the risk of the validity of the mortgage, as well as of the ability of the property pledged to produce the amount of the debt. As the case was submitted, the verdict established that these words were not thus' intended and understood by the parties.

At the trial the record of the judgment in the action of scire facias sur mortgage was offered in evidence. Its admissibility as pertinent testimony is not, as we understand it, questioned. The learned counsel for the appellant, however, insists that the trial court fell into error in his instructions to the jury as to the legal effect of that evidence. The court instructed the jury, that in the first instance such a record was prima facie evidence that the mortgage had been in fact paid. Thus far it is agreed the instruction was right.

The court further declared that if the jury found, from the evidence.. before them in the present case, that Hinkle, this .defendant, had been advised of the bringing of the former suit; of the nature of the defense that-had. been made to.it, had been given an opportunity to resist, by any means in his power and by any evidence he could furnish, the defense of payment advanced by the mortgagors; and if further he was in fact present in court at the trial with his counsel; if he and his counsel conferred with the plaintiff in that case and her counsel as .to the manner in which -it would be tried; then they might go farther and determine that the record of that former trial would be conclusive on the present defendant as to the question- of payment. If, on the other hand, they were satisfied, as the defendant contended, that he and his counsel were present in court only as witnesses; that they had never been called upon nor notified to participate in the trial of that action, and had no responsibility for its conduct or management, then the record would not be conclusive, and in that event the jury might then determine, under the. evidence before them, whether or not the mortgage had been in fact paid before the assignment, without regard to the finding of the former jury on that question.

We • have not been referred to any case in Pennsylvania which can be fairly said to be exactly decisive of the question here raised-. It is, of course, a well-recognized general principle that no person can be bound by a judgment to which he was- not either party or privy. On the other hand, it is equally clear that where one occupies a position <of ultimate legal responsibility for the result of an action pending between two other parties, if he be formally notified to come in and participate in the trial of such action, under penalty of being concluded by the’judgment that may be rendered, such a judgment will be conclusive against him. No particular kind or form of notice to thus affect -a third person has been prescribed. The- reason underlying the principle points .plainly to the fact, that knowledge of the situation brought home to the party ultimately to be,affected and a proper .opportunity-to participate in the action, for the results of which he is to be held responsible, are the essential elements which, if present, will and of right ought to make the judgment conclusive.

We think the correct principle-is well set out by the supreme court of Maine in Holbrook v. Holbrook, 15 Maine, 9, in the following language: “It'cannot be material to the person agreeing to indemnify that he should have a formal notice served upon him. The law requires that he should have notice, before the judgment can be used against him because he is the real party in interest, but any notice which .will enable him to present any .defense which he may have, either in law or fact, is all that can be useful to him, and the law requires no vain or useless ceremony in such cases.”

It is stoutly contended by the appellant that the present record discloses no facts from which a jury should have been permitted to find that any such notice was given to him, or any such opportunity was afforded. If this were, the fact, of course such a question should not have been submitted; but after a careful reading of the testimony, we are driven to the conclusion, reached by the learned court below, that there was evidence upon which such' a finding might fairly rest. That the defendant was fully advised of the nature of .the defense made to the action of scire facias there can be no doubt; that he and his counsel conferred with the plaintiff’s counsel on that subject, discussed the evidence that could be produced pro and con, and the effect of an adverse verdict, is equally clear. That all-were present during the trial of the cause is not disputed. There is evidence the defendant was told by plaintiff’s counsel that “they expected him to stand-by us in this suit; . . . : that it might become necessary, for us to look to them for this money in the event that we would fail to-recover against Sheeder and Smith (the mortgagors).” There was evidence that the plaintiff and her counsel had agreed' with the defendant and his counsel upon the line of procedure to be adopted: That, at least one of the counsej.of the defendant assisted in outlining the method of presenting the .case for trial; that during the trial conferences.were had with the defendant and his counsel) and that after verdict and judgment, the defendant was formally notified. that the plaintiff would look to him for payment of this mortgage, but that he determined to do nothing, although there was still time to take an appeal to correct any errors that might -have existed in the' record of the trial. We think, therefore, there was evidence from which the jury might be permitted to find that the present defendant had all the necessary knowledge of the nature and possible effect of the former case, and every reasonable opportunity to participate in the management and trial of that case, and that he did in fact so participate, and if this be true, then the instructions of the learned trial judge were correct.

It may be true, as the learned counsel for the appellant earnestly argues, that a serious mistake was made in the earlier trial, but if so, the record of that case is not now before us, and we are as powerless as the defendant to correct any such error.

The learned trial court in a most careful and painstaking charge went over each one of the various legal aspects of the case as it was presented by the record, and his reasoning, to ■our minds, so completely vindicates the conclusions he reached, that the judgment might be affirmed on that charge.

The assignments of error are all dismissed and judgment affirmed.


text:
    Campbell, Appellant, v. Erb.

      Judgment — Satisfaction—Discretion of court — Certiorari.
    An appeal from an order of court refusing to strike off the satisfaction of a judgment, amounts to nothing more than a common writ of certiorari, and must be disposed of as such. The matter is within the discretion of the court below, and such discretion will not be reversed by the appellate court in the absence of manifest error.
    Argued Nov. 14, 1907.
    Appeal, No. 79, Oct. T., 1907, by plaintiff, from order of C. P. Lancaster Co., Jan T., 1895, No. 717, discharging rule to strike off satisfaction of judgment in case of George Campbell v. Aldus Erb.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off satisfaction of judgment.

      Landis, P. J., filed the following opinion:
    On March 28, 1895, the defendant executed and delivered to the plaintiff a judgment bond for $1,000, which was, on the same day, entered in this court to the above number and term. At the same time, its lien was postponed to a judgment held by Thomas Cully against the defendant for $1,500. It was not revived after its entry. On November 5, 1904, the plaintiff signed a power of attorney, authorizing and empowering the prothonotary to enter satisfaction upon it, and, in pursuance of the power thus given, the judgment was, on November 7, 1904, marked satisfied. The plaintiff now asks that this satisfaction be stricken off and that the original judgment be restored. It was shown that George Campbell had knowledge of its purport, and signed the paper with a full understanding of its purpose and effect, the sole contention here being, that Aldus Erb did not pay the money, but undertook to give a note with security, and failed to carry out his promise.
    George Campbell, is an aged man, almost eighty-six years old. Rey. John B. Laird is a nephew of George Campbell, and a brother-in-law of Aldus Erb. He knew that Aldus Erb owed Campbell $1,000, and that Henry Douts owed him $600, and that the interest was hardly sufficient for the old gentleman’s maintenance. Campbell had informed him that he intended the principal of these indebtednesses to go to Erb’s wife and Henry Douts after his death. Laird therefore suggested to Campbell an annuity plan, whereby Erb should pay $75.00 yearly during Campbell’s life. Erb was not present when this proposition was made, and it was only communicated to him after Campbell had approved of it. In accordance with this idea, the judgment in controversy was satisfied, and a note was prepared by Laird, which was mislaid. Erb afterwards wrote one of similar import which he signed and handed to Campbell. Erb understood that security was to be given, and informed Campbell that he had been to his father’s house to get the signature of his father to the note, but that his father was not at home. Campbell accepted the note, and said he would get the father to sign. He kept the note, did not procure the father’s signature, and received from time to time payments in money, wheat, corn, etc., to the amount of $164.39. He never demanded the security before these proceedings were instituted. Benjamin W. Erb, who- is the father of Aldus Erb, testified that he told Campbell he would sign the note, and Campbell answered, “1 will come down some day and we will have á talk and you can put your name on.” Under the facts as thus presented, should the satisfaction be stricken off?
    Parol evidence is not ordinarily admissible to contradict or vary a written instrument, unless it is shown that there has been fraud, accident or mistake in the creation of the instrument itself. But evidence of a-contemporaneous oral agreement, which induces the execution of the written contract, is admissible; though it may vary, change or reform the instrument, such oral agreement being, however, shown by evidence that is clear, precise and indubitable: Sutch’s Estate (No. 1), 201 Pa. 305; Thomas v. Loose, 114 Pa. 35; Phillips v.' Meily, 106 Pa. 536; Nettleton v. Caryl, 20 Pa. Superior Ct. 250. That an agreement was made in this case whereby $75.00 was to be paid per year during the life of George Campbell, and that, in pursuance of this agreement, the judgment was satisfied, seems to be plain; and from the testimony of the parties themselves, we must also conclude that the note, which was to be given was to have upon it the name of Aldus Erb’s father as security. It is true that this part of the agreement has not been fulfilled, and, if this were all that appeared, and it Was made plain to us (which it has not) that the rights of third persons are not in any way involved, we might be' impelled to reinstate the parties in the position which they occupied before that arrangement was made. But we are satisfied, from the preponderance of the evidence before us, that the fault, if any there was, that caused the lacking signature upon the note, was more attributable to George Campbell himself than to Aldus Erb, and we think that, under the circumstances, he has no standing to ask for this equitable relief. He accepted a note without security, and has retained it almost three years without complaint. In addition, he has never attempted to secure the signature of Benjamin H. Erb, which he undertook to obtain, although Erb was willing to go on the note. He has, therefore, no right to have satisfaction stricken off. In Seigler v. Ripple, 1!6 Lañe. Law Review, 237, under facts having some similarity, an'aged woman attempted to strike off the satisfaction which she had entered on a mortgage held by her against her' grandson. Thé late Judge Livingston, having fully considered all the merits, for reasons of like character discharged the rule. ■ This, we think, is the proper course to be pursued in the present casé, and the rule is now discharged.-
    February 28, 1908:
    Rule discharged.

      Error assigned was the order of the court.

      B. F. Davis, for appellant.

      J'ohn-M. Groff, for appellee.
   Opinion by

Orlady, J.,

On March 28, 1895, the defendant executed and delivered to.the plaintiff a judgment bond for $1,000, which was on the same day entered in judgment in the court of common pleas, with- its lien postponed to another judgment against the same defendant for $1,500. No scire facias to revive this lien was ever issued thereon, and on November 5/ 1904 the' plaintiff signed-a power of- attorney authorizing the prothonotary to enter satisfaction upon it; in pursuance of which the judgment was marked satisfied on November 7, 1904. On December 15, 1906, the plaintiff presented his petition for a rule to show cause why the entry of satisfaction should not be stricken off and vacated. To this rule an answer was made by the defendant, and after a full hearing on the petition, answer and depositions the rule was discharged. The appellant urges a number of propositions that cannot be considered in the light of the real question involved. This is an appeal from the order of court refusing to strike off the satisfaction of a judgment.- In legal effect, therefore, it amounts to nothing more than a common writ of certiorari. ’ Rand v. King, 134 Pa. 641. It is, therefore, to be disposed of as such: Shoup v. Shoup, 205 Pa. 22; Gilmore and Gilmore & Duffy v. Dunleavy, 6 Pa. Superior Ct. 603; McKinney v. Fritz, 2 W. N. C. 173. If the plaintiff was induced to enter satisfaction of the judgment upon the record either- by fraud or by mistake the court undoubtedly had the right, upon proof of the facts, and on notice to the parties, to strike off such improper entry. This question was addressed to the discretion of the court, and we are in full accord with the conclusion reached.

The assignment of error is overruled, and the judgment is affirmed.


text:
    Good’s Estate.

      Executors and administrators — Appeal from register — Pleadings—Evidence — Practice, O. C.

    xOn an appeal from the action of the register of wills refusing to grant letters of administration, where all the averments of the petition are denied by the answer, and no replication is filed nor evidence taken in the orphans’ court, the averments of the answer will be taken to be true.
    Argued Nov. 15, 1907.
    Appeal, No. 140, Oct. T., 1907, by Lydia A. Barley et ah, from decree of O. C. Lancaster Co., June T., 1906, No. 41, dismissing appeal from order of the Register of Wills, refusing to grant letters of administration d. b. n. in Estate of Hetty Good, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for appeal from register of wills.
    The opinion of the Superior Court states the case.

      Error assigned was decree refusing appeal.

      B. F. Davis, for appellants.
    ' John M. Groff,' for appellees,
    cited: King’s Est., 9 W. N. C.
    207; Neal’sWill, 17 W. N. C. 191; Shoenberger’s Est., 139 Pa. 132; Topham’s Est., 28 Pa. C. C. Rep. 220; Steffy’s App., 76 Pa. 94; Worthington’s App., 6 Pa. Superior Ct. 484; Russell’s App., 34 Pa. 258; Souder’s Est., 169 Pa. 249.
    February 28, 1908:
   Opinion by

Henderson, J.,

The act of March 5, 1832, does not make provision for the preservation of the evidence upon which the register acts in granting or refusing to grant letters of administration. The evidence was taken before the register at the hearing in this case but the appellees objected to its consideration. It is claimed, however, that under a rule of the orphans’ court of Lancaster county the evidence was properly before that court. The rule referred to provides that the official stenographer shall attend the hearings of contested wills and administrations held by the register of wills and take the testimony produced in such case, and that the testimony so taken shall upon being duly certified by the register, be transmitted with the record to the orphans’ court and be used in all subsequent proceedings before that court. We need not determine whether the orphans' court has authority to adopt a rule in any way regulating the proceedings before the register, for an inspection of the record shows that the testimony taken was not certified by the register, as required by the rule, and might have been disregarded by the orphans’ court. Without the evidence the record consists of the appeal from the action of the register, the petition of the appellants and the answer of the appellees. A replication was not filed, nor was any testimony taken in the orphans’ court. In such a case all the averments of the answer will be taken to be true: Souder’s Estate 169 Pa. 249. The answer filed by the respondents is a comprehensive and specific denial of the material averments of the petition and is sufficient to justify the dismissal of the appeal. If the case were to be determined on the evidence, however, we are not satisfied that the learned judge of the orphans’ court committed any error in the conclusion reached. The weight of the evidence supports the findings. The decree is affirmed.


text:
    Deichley’s Estate.

      Mechanic’s lien — Completion of work — Six mpnths’ limitation.

    '' In the distribution of a fund raised by an orphans’ court sale of real estate, a mechanic’s lien will not be given priority over a judgment, by evidence outside of the claim itself, that the last work for which the lien was filed, was done on a day within six months from the date of the filing of the claim. Such a statement must be embodied in the claim as filed, and if it does not appear there, the orphans’ court has no power to give validity to the lien, by amendment of the claim.
    A mechanic’s lien is purely statutory, and a compliance with statutory requirements is necessary in order to give it validity.
    Argued Nov, 15., 1907.
    Appeal, No. 166, Oct. T., 1907, by the First National Bank of Honeybrook, from decree of O. C. Berks Co., May T., 1907, No. 22, dismissing exceptions to adjudication in Estate of Samuel Deichley, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication. Before Bland, P. J.
    The fact appears by the opinion of the Superior Coúrt.

      Errors assigned were in dismissing exceptions to adjudication.

      Joseph R. Dickinson'and J. Carroll Hayes, for appellant.—
    There has not been a compliance with clause 9, sec. 11, of the act: McCay’s App., 37 Pa. 125; Knelly v. Horwath, 208 Pa. 487; Wolf Co. v. Penna. R. R. Co., 29 Pa. Superior Ct. 439.
    The claimant must establish the averments of his claim. And proof of these averments cannot be made by proof of some other facts. A variance is fatal. The allegata and probata must correspond: Johnson on Mechanics’ Liens, page '379; Rynd, etc. v. Bakewell & Reed, 87 Pa.' 460; Wetmore’s App., 91 Pa. 276; Lee v. Burke,,66 Pa. 336; Wolf Co. v. Penna. R. R. Co., 29 Pa. Superior Ct. 439.
    There was not a continuous furnishing in the erection and construction within six months of the filing: Noar v. Gill, 111 Pa. 488; Stevenson v. Stonehill, 5 Wharton, 301; Yearsley v. Flanigen, 22 Pa. 489; Diller v. Burger, 68 Pa. 432; Thoma & Blandy’s Estate, 76 Pa. 30; McKeelvy v. Jarvis, 87 Pa. 414; Hofer’s App., 116 Pa. 360; Singerly v. Doerr, 62 Pa. 9; Holden v'. Winslow, 18 Pa. 160; Safe Dep., etc., Co. v. Iron & Steel Co., 176 Pa. 536.
    March 28, 1908:

      E. Carroll Schaeffer, with him C. II. Schaeffer, for appellee.—
    A statute creating’ a lien, being remedial in its nature, is to be liberally construed so as to give full effect to the remedy, in view of the beneficial purpose contemplated by it: Hudler v. Golden, 36 N. Y. 446; Eckhard v. Donohue, 9 Daly (N. Y.), 214; Estes v. R. R. Co., 27 Pa. Superior Ct. 521.
   Opinion by

Henderson, J.,

The contest in this case arises out of the distribution of the proceeds of the land of Samuel Deichley, deceased, sold on an order of the orphans’ court for the payment of debts. The appellant obtained a judgment against Deichley on May 12, 1905. On April 4th prior thereto Deichley commenced the improvement of his property by the construction of a large porch, some repairs inside of his residence, and the erection of a barn on the same lot. Howard Sheeler furnished lumber used in this improvement. He did not have a contract for all the lumber for the undertaking, but furnished material, from time to time as needed, on the order of the carpenters engaged on the work. On March 3, 1906, Sheeler filed a mechanic’s lien for the material so furnished. Deichley died after the lien was filed and on distribution of his estate the judgment creditor and the mechanic’s lien creditor each claimed priority of lien on the fund. The court below found that the mechanic’s lien was entitled to preference. There are numerous exceptions to this action. One of the objections to the Sheelerclaim is that it does not conform to the requirements of the eleventh section of the Act of June 4,1901, P. L. 431, which requires that the claim shall set forth among other things “when the claimant first furnished labor or materials thereto, and when he last did so.” The lien as filed set forth in the eighth paragraph as follows: “The claimant first furnished the material for said buildings on the 4th day of April, 1905, and continuously thereafter until the 7th day of September, 1905, when the last material was furnished.” The bill of particulars attached to the lien showed a sale of lumber at various times from April 4, 1905, to September 7, 1905, inclusive, and attached to the bill is the statement of the claimant that “All the material was furnished between the dates April 4, 1905, and September 7, 1905, as above set forth.” The claim was sworn to as required by the act of assembly. At the hearing it was admitted that there was no sale or delivery of material on September 7th, the date of the last item as stated in the claim and itemized account, the last charge before that being August 7th. It was alleged, however, by the claimant that there was a sale of a small bill on September 27, 1905, and the claimant’s counsel stated at the hearing that the entry of September 7th was a mistake, and that a charge should have been made on September 27th, and the books of the claimant were offered in evidence in support of this allegation. Without the item of September 27th, the lien could not be sustained for the reason that it was not filed in time. The court admitted the evidence of the charge of September 27th and found that the claimant’s contract was completed at that time. The objection to this action is that it was in effect an amendment of the lien by the orphans’ court and that, too, in a material respect after the time had passed within which a lien could be filed. It has been frequently said that a mechanic’s lien is purely statutory and that a compliance with statutory requirements is necessary in order to give it validity. There is no intendment in its favor: Knelly v. Horwath, 208 Pa. 487. The command of the statute that the claim filed shall set forth when the claimant first furnished material and when he last did so is a reasonable one not only in the interest of the owner but of other creditors with whom, as in this case, questions of priority may arise; but whether reasonable or not it is a requirement essential to the validity of a lien and which may not be dispensed with. It, of course, is implied that the statement must be truly made and others interested have a right to rely on the record as setting forth the facts. As it is conceded that the lien in question does not set forth when the last material was furnished the necessary conclusion follows that the act authorizing a lien has not been complied with. It is not stated that the charge of August 7 is the last item and if that were the averment the lien would prove the claimant out of court as it was not filed for more than six months after that date. The charge of September 7 confessedly being a mistake, no material having been furnished at that time, the claim is essentially defective. Parties bidding and purchasing at the sale were doubtless governed by the statement of the record and were not bound to anticipate that an undisclosed claim would be presented for a completion of the contract at a later date. The claim must be self-sustaining and cannot be extended beyond the limits marked out by its terms. Whatever may have been the right of the claimant to proceed for an amendment of his claim in the common pleas, the orphans’ court had no authority to add to or qualify the record which alone gave the appellee standing to participate in the distribution.

There is the further defect in the claimant’s case that even if it were admissible to prove that the claim should have contained a charge on September 27th, there is no evidence which in our opinion justifies the conclusion that the contract with the decedent was completed on that date or that the small item of material then alleged to have been furnished was used in the improvement originally undertaken. The lien was not evidence to prove the plaintiff’s claim, against objection. Its statements as to contract, time and amount are averments only and prove nothing. The only direct evidence as to the time when the work was completed is found in the testimony of John W. Jacobs, a contractor and builder, who supervised the work on the ground. In answer to the question when the work was completed — when he was last on the ground — he replied “I was on the ground last on September 12th of that year” (1905). On that date he completed a stairway in the house and cased the outside door. There is no evidence that anyone connected with the work ordered any lumber to be used on the premises after September 12th; nor is there any evidence that any work was done there after that date. As far as the affirmative evidence goes it is to the effect that the last work done on the premises was September 12th. The mere fact that a charge was made for lumber on the twenty-seventh is not sufficient to connect it with the work of which Mr. Jacobs had supervision. The burden was on the claimant, to make this appear. The 4th, 5th and 6th assignments of error are sustained. Other questions are presented relating to the continuity of the contract, the right to file a lien against the whole property for the whole improvement and the distinction -between repairs and substantial alterations, but a discussion of them is unnecessary as the conclusion already reached is against the validity of the mechanic’s lien. Under the evidence the appellant is entitled to priority of lien.

The decree is reversed and the record remitted to the court below to make distribution in accordance with this opinion.


text:
    Fry's Estate.

      Decedent’s estate — Claim for services — Evidence.

      A finding by ,the orphans’ court based upon sufficient proof that a decedent promised a domestic servant to pay her what her services were worth, will not be reversed by the appellate court where no manifest error appears.
    Argued Nov. 15, 1907.
    Appeal, No. 172, Oct. T., 1907, by plaintiff, from decree of O. C. Lancaster Có., Oct. T., 1905, No. 58, dismissing exceptions to adjudication in estate of Mel-choir Fry, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      February 28, 1908:

      B. D. ‘Davis, for appellant.

      H. Frank Eshleman, for appellee.
   Opinion by

Orlady, J.,

In the adjudication of the account of A. L, Fry, administrator, the only controversy with which we are concerned, is that of a claim of Mary Erb for services rendered to the decedent. The testimony shows that for a number of years she was the latter’s housekeeper, cook and nurse, and that he was a paralytic. She also worked in the fields as a day laborer, and attended to the general care of his house, barn and cattle. There was no controversy between the parties as to work or wages, and it is conceded that the services performed by her were arduous and disagreeable, and that the decedent was very exr acting in the attention required by him, being an enfeebled and helpless old man. It is not at all clear what the original contract between the 'parties was, nor is it certain that its original terms were changed in any way, except as to the time when Mary Erb. was to be paid for her services. While the decedent owned a farm he was continually pressed for money, and the testimony shows that he .made repeated promises to pay her what her services were worth, and also that she was satisfied to postpone, her claim in favor of other and more insistent creditors. After a careful review of all the testimony the learned judge below sustained her claim, and made an award in accordance with his conclusions, which are fully sustained by the evidence. The attempt to bar a recovery of her claim by an alleged receipt for $25.00, signed with her name, marked “In full for labor,” and releasing all other claims and demands, was answered by her denying its genuineness; as well as by the corroboration of her statement by the facts incident to the manufacture of this item of evidence, and by the withholding of a genuine receipt which had been prepared by counsel for the heirs.

The courts will not relax the rule of requiring clear proof of such claims against a dead man’s estate when they might have been made against himself .while living, and they are always subjects of a just suspicion. A high standard of proof is demanded in such cases, which must be of a convincing kind; but when such proof is furnished and the court or the jury is. satisfied of the correctness of the claim, it should be paid like any other just demand: Carpenter v. Hays, 153 Pa. 432; Hayes’s Estate, 17 Pa. Superior Ct. 412. We are fully in accord with the conclusion reached by the learned court below, and the judgment is affirmed.


author: Beaver, J.,

text:
    Bittner v. Bangert, Appellant.
    February 28, 1908:

      Landlord and tenant — Repairs—Principal and surety.

    Where a tenant has removed from the leased premises because of the landlord’s failure to perform his covenants to keep the building in good repair, the sureties of the tenant have a right to defend against payment of rent accruing after the tenant’s removal.
    Argued Nov. 15, 1907.
    Appeal, No. 162, Oct. T.,- 1907, by defendants, from order of C. P. Lancaster Co., Feb. T., 1907, No. 24, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Conrad Bittner et al. v. George Bangert et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of'the Superior Court.

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

      W. U. Hensel, with him J. E. Senft, for appellants.

      B. F. Davis, for appellee.
   Opinion by

Beaver, J.,

This is an action by landlords against the sureties of their tenant who removed from the premises before the expiration of the lease.

The court below, as we think, correctly stated that “When, for a breach of the terms of the lease by the lessors, the principal has left the leased premises, the sureties have a right to defend for the rent accruing after the tenant’s removal.” If, therefore, the affidavits of defense set forth, with sufficient clearness, what would have been a defense by the tenant, the principal in the lease, it will avail to prevent judgment against the sureties.

It seems to be conceded by the affidavit of defense that-the tenant vacated and abandoned the premises during the leased period.

The following clause appears in the lease under which the claim of the plaintiffs is made in this case:

“The said parties of the first part agree to maintain the hotel and other buildings on the premises in a state of repair consistent with the needs and demands of a good hotel, it being understood by and between the parties hereto that the said Edward B. Horner is to keep and maintain in repair the beer pumps, spigots and accompanying apparatus and the furnace grates, and that he, the said Edward B. Horner, is to replace any window lights broken during his tenancy and is likewise to repair all injury to the building or fixtures done or caused by the willful neglect or wanton and malicious acts of any of his guests or employees.”

The affidavit of defense alleges that “The building was heated by a steam plant which it was the duty of the plaintiffs, under their agreement, to maintain. They failed, neglected and refused to do so, and said plaintiffs were warned to do it and failed to repair or replace it. The result was that it would not heat the building. The rooms were cold, uncomfortable, dangerous and prejudicial to health and guests refused to occupy them. The entire third floor of the building, which had eleven rooms, was so cold that it could not be occupied by guests, boarders would not stay and transient guests would not patronize the hotel. The boiler was too small and inadequate and not of sufficient size to furnish heat.”

Two other defects in said hotel property which existed and of which the plaintiffs had notice, and which they refused to repair, and which were inconsistent with the needs and demands of a good hotel, were that “the cellar steps were dangerous, being worn out and the timbers defective. The paper of the bath rooms and other rooms of the house was worn out, in bad condition and unfit for a good hotel, and they refused and neglected to replace the same. Wherefore the tenant of said premises was unable to maintain a good hotel at said property, and having truly and faithfully performed all the provisions of his contract, and the plaintiffs having failed to maintain theirs, he was justified in removing therefrom.”

This affidavit, made by one of the defendants, is supplemented by the affidavit of the tenant, in which he alleges that the facts contained in the supplemental affidavit of defense and also the original filed by John L. Zimmerman, one of the defendants, “ are true and he will be able to prove them on the trial of this case.”

The court, in its opinion, states the grounds upon which it deems the affidavit insufficient as follows: “While, as we have said, the plaintiffs agreed to maintain the hotel and other buildings in a state of repair consistent with the needs and demands of a good hotel, there is no stipulation that they shall take out the old and install a new heating plant, so that, during some of the winter months, the building should be more properly heated. Such a thing does not seem to have been in the contemplation of the parties, at the time they executed their lease. Apparently on November 14, 1906, two years after taking possession of the premises, and before the cold weather of that winter approached, Horner left. He was a tenant for the two preceding winters, but the affidavits do not state which years the troubles of which the defendants complain existed. So far as the cellar steps were worn out and the timbers defective, and the papers on the bath rooms and other rooms of the house worn out, in bad condition and unfit for a good hotel, these allegations are not sufficient, we think, to avail the defendants. Horner was to ‘repair all injury to the building or fixtures done or caused by the willful neglect or wanton and malicious acts of any of his guests or employees.’ It is nowhere asserted that the alleged defects were outside of the responsibility thus imposed upon him. It is left open to conjecture that because they existed, therefore the plaintiffs were bound to repair. This does not follow as a consequence under the stipulation of the lease.”

Whether the renewal of the heating plant was in the contemplation of the parties at the time the lease was made is, in our opinion, a matter of little consequence. The landlords were bound to maintain the hotel and other buildings on the premises in a state of repair, consistent with the needs and demands of a good hotel. If, by reason of the unusual severity of the winter, it were demonstrated that the heating plant was insufficient, or if it became, by reason of use, unfitted for the purpose for which it had been originally installed, it was the duty of the landlords to repair or replace it. The fact is clearly set forth that The entire third floor of the building, which had eleven rooms, was so cold that it could not be occupied by guests, boarders would not stay and transient guests would not patronize the hotel.” If this was true and the cause of it was that stated in the affidavit of defense, we think it was sufficient, if the facts were shown, to constitute a defense.

The wearing out of the cellar steps and the defectiveness of the timbers could not, in the nature of the case, be fairly charged to the willful neglect or wanton and malicious acts of any of the tenant’s guests or employees. Even, however, if worn out and defective as alleged, we would not regard this allegation taken alone as sufficient to prevent judgment, inasmuch as the probable cost of making the repairs is not stated and the tenant undoubtedly had the right to make such, repairs and could have defalked the cost thereof from the rent. Taken in connection with the more serious allegation of the landlord’s failure to observe the covenants of the lease, it helps to establish a condition of which the defendants have a right to take advantage in establishing a defense.

The case is, in our opinion, clearly one for a jury, if the facts alleged shall be established.

Decree reversed and a procedendo awarded.

Rice, P. J., dissented.