text:
    National Cash Register Company v. Shurber, Appellant.

      Bailment — Lease—Conditional sale.

    1. A writing designated as a “ lease ” of a machine will be construed to be a bailment and not a conditional sale, where it appears that the bailees as stipulated in the writing deposited a stated amount as partial security for the fulfillment of the agreement, which was to be returned to them upon the surrender of the machine provided the terms of the lease had been complied with; that they gave their promissory note as collateral for the rent payable in seven monthly installments, that the aggregate amount of this note and the deposit was the agreed value of the machine; and that the agreement gave the lessees the option, after the expiration of the lease and the surrender of the chattel to purchase the chattel upon payment of the amount deposited as partial security.
    2. In such a ease the superadded agreement that should the machine get out of order from ordinary use at any time within two years from the date of shipment, the bailor would repair the same gratis, does not have the effect to convert the transaction into a sale.
    3. The fact that the original intention of the parties is to make a sale, and that such is the legal effect of their first agreement, does not prevent a change while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions.

      Estoppel — Estoppel in pais — Equitable estoppel.

    4. An estoppel in pais does not operate in favor of everybody. In general it operates only in the favor of a person for whom it was intended, and who has been misled to his injury; and he only can set it up.
    5. Where there is an attempt to apply the doctrine of equitable estoppel, one essential is that the party in whose favor it is invoked must himself act in good faith.
    6. In an action of replevin it appeared that the plaintiff had leased a chattel, and that the defendant had purchased the chattel at a constable's sale, the bailee had delivered the chattel to another person with instructions to return it to the plaintiff, and to this person the plaintiff had written a letter in which the bailment was designated as a sale. This person instead of delivering the chattel procured the judgment against the bailee and issued execution on which the chattel was sold by the company. The defendant had no knowledge of the letter written by the plaintiff. Plaintiff delayed enforcing its demand for thirty-three days. Held, (1) that the defendant could not use the letter as an estoppel against the plaintiff, (2) that he could not work out an equitable estoppel against the person who had procured the sale of the chattel, inasmuch as the latter was not in a position to claim an equitable advantage by reason of anything that the plaintiff had said or done; and (3) that plaintiff was not guilty of laches.

      Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108.
    7. A foreign corporation may institute an action in replevin to recover its personal property from one who has no contractual relation with it, although the company is not registered under the Act of April 22,1874, P. L. 108.
    Argued May 10, 1909.
    Appeal, No. 17, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., Dee. T., 1907, No. 148, on verdict for plaintiff in case of National Cash Register Company v. George Shurber.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Replevin to recover a cash register. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      On Buffington, of Buffington & Gilpin. and C. E. Harrington, for appellant.
    The appellant contends that the court below should have interpreted the paper itself under which delivery was made as a conditional sale. Even if this is not correct it was the plain duty of the court to submit the character of the paper with the oral and other written evidence to the jury as a question of facts: Ladley v. U. S. Express Co., 3 Pa. Superior Ct. 149; Farquhar v. McAlevy, 142 Pa. 233; Gernert v. Knerr, 3 Pa. Superior Ct. 47; Laundry Machinery Co. v. Fromuth, 15 Pa. Superior Ct. 339; Hill v. Mfg. Co., 3 Pa. Superior Ct. 398; Porter v. Duncan, 23 Pa. Superior Ct. 58; Miller v. Browarsky, 130 Pa. 372; Car Co. v. Altoona, etc., R. R. Co., 218 Pa. 519; Wolff Dryer Co. v. Bigler & Co., 192 Pa. 466; Penna. R. R. Co.’s App., 86 Pa. 80.
    The writing of the letters designating this register as having been sold caused the mischief in this case, and even if it was a mistake to so designate it, yet it was the act of the appellee and he must abide by it: Vanderslice v. Ins. Co., 13 Pa. Superior Ct. 455; O’Connor v. Clark, 170 Pa. 318.
    October 11, 1909:
    The court erred in the refusal of appellant’s first point which allowed the appellee to recover without having registered under the provisions of the Act of April 22, 1874, P. L. 108: Wolff Dryer Co. v. Bigler & Co. 192 Pa. 466.

      H. L. Golden, with him Harry C. Golden, for appellee.
    The learned court below properly construed the contract involved in this case as a contract of bailment: American Car & Foundry Co. v. Altoona & Beech Creek Railroad Co., 218 Pa. 519; Jones v. Wands, 1 Pa. Superior Ct. 269; Potter v. Stetson & Co., 11 Pa. Superior Ct. 627; Miller v. Douglas, 32 Pa. Superior Ct. 158; Painter v. Snyder, 22 Pa. Superior Ct. 603.
    The defendant acquired no title by virtue of his purchase at the constable’s sale: Jones v. Wands, 1 Pa. Superior Ct. 269; Potter v. Stetson & Co., 11 Pa. Superior Ct. 627.
    The plaintiff, a foreign corporation, can maintain an action of replevin for the recovery of its property from defendant, with whom it has no contractual relation, even though it (the plaintiff) has not complied with the act of April 22, 1874, and other registration or taxing acts of a similar nature: King Optical Co. v. Royal Ins. Co., 24 Pa. Superior Ct. 527; Berry Hill Mineral Spring Co. of Virginia v. Pile et al., 17 Pa. Dist. Rep. 246.
   Opinion by

Rice, P. J.,

The court was right in its construction of the writing under which the chattel in dispute was delivered to Vergos and Kyramis. It contained all the essentials of a contract of bailment, and went beyond the indispensable essentials in including the express agreement of the bailees to surrender the chattel to the bailor in good condition at the expiration of the lease, which was for seven months at a stipulated rent. Upon principle, and according to the doctrine of numerous cases, the facts that the bailees, as stipulated in the writing, deposited $15.00 as partial security for the fulfillment of the agreement, which was to be returned to them upon the surrender of the chattel provided the terms of the lease had been complied with; that they gave their promissory note, as collateral for the rent, payable in seven monthly installments; that the amount of this note, and the deposit of $15.00 ($85.00] was the agreed value of the machine; and that the agreement gave the lessees the option, after the expiration of the lease and the surrender of the chattel, to purchase the chattel upon payment of the amount deposited as partial security, neither taken singly nor together converted the transaction into a sale. See Painter v. Snyder, 22 Pa. Superior Ct. 603; Euwer v. Greer, 29 Pa. Superior Ct. 262; Miller v. Douglas, 32 Pa. Superior Ct. 158, and the cases therein cited. Nor did the superadded agreement, that should the chattel get out of order from ordinary use at any time within two years from date of shipment, the bailor would repair the same gratis, have that effect. For as the bailees were given the option to purchase at the expiration of the lease, it was entirely consistent with the intention to create a bailment for the parties to make an agreement as to repairs, which would be effective not only during the term but also in the event of the bailees becoming the purchasers after the expiration of the lease and the termination of the bailment. “Possession under a mere bailment for hire is not a constructive fraud, otherwise much of the business of men would be ended, and the poorer the bailee the less would be his ability to hire the use of property needful to him:” Crist v. Klebler, 79 Pa. 290; American Car, etc., Co. v. Altoona, etc., R. R. Co., 218 Pa. 519. “The fact that the original intention of the parties is to make a sale, and that such is the legal effect of their first agreement, does not prevent a change while it is still executory into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions:” Goss Printing Press Co. v. Jordan, 171 Pa. 474; Stiles v. Seaton, 200 Pa. 114. In the present case there was no extraneous evidence of anything said or done at or prior to the delivery of the chattel to the bailees, which, under any decision that has come to our notice, would sustain a finding by the jury that a present sale was consummated or intended, and that the written contract was a subterfuge resorted to in order merely to preserve a lien on the chattel until the price should be paid. Nor is there any adequate evidence that what was at first a bailment had, in the intention of the parties, become converted by subsequent dealings into a sale. We come then to the question of laches and estoppel. The lease was made near the end of August, 1907. On September 23 of the same year the bailees left the chattel with one Paul Liberakis to be delivered to the bailor, Liberakis consenting to deliver it upon the bailor’s demand and assenting to the bailees notifying the bailor to that effect. Two days later, the bailor, complying with the directions of the bailees, forwarded from Pittsburg to Liberakis at Kittanning an empty box in which to ship the chattel to Pittsburg, and mailed to Liberakis the following letter, written by one of its officials or clerks: “ Vergos & Kyramis, who were in business in your town, and to whom we sold one of our cash registers, stated that they left it with you, and that if we would send you an empty box you would ship it to our Pittsburg office. We are shipping a box by express, prepaid, to-day, and would kindly ask you that you put it into this box and ship it to our address at once. Thanking you in advance for your attention, we remain, yours truly.” Liberakis did not comply with this request and his implied undertaking to deliver the chattel to the bailor, nor did he reply to the letter, but instead, obtained a judgment before a justice of the peace against the bailees, and by virtue of process issued thereon caused the chattel to be levied on on October 21, 1907, and sold on October 28, as their property, the defendant in the present action of replevin becoming the purchaser. There is no evidence that the bailor, its officers or agents had any knowledge of these proceedings. As already pointed out, the written contract under which the chattel was delivered to and held by Vergos & Kyramis was a contract of bailment, with a superadded executory contract to sell. To the mind of a layman the distinction between such a contract and a conditional sale is not very clear, and the mere fact that the writer of the above letter spoke of it as a sale did not change its legal effect.' Nor can the defendant base an estoppel on this erroneous designation of the nature of the agreement, because the letter was not addressed to him and there is no evidence that he ever saw it or that its contents were ever communicated to him. An estoppel in pais does not operate in favor of everybody. In general it operates only in favor of a person for whom it was intended, and who has been misled to his injury; and he only can set it up: Bispham’s Equity (7th ed.), sec. 293; Sensinger v. Boyer, 153 Pa. 628; Work v. Prall, 26 Pa. Superior Ct. 104; Davis v. Fenner, 30 Pa. Superior Ct. 389. If it be said that the defendant has an equity which can be worked out through that of Liberakis, the obvious answer is that Liberakis was not in position to set up an equitable estoppel. He had consented to take the chattel and deliver it to the bailor on its demand, and he knew from what the bailees told him that they were to notify the bailor of his undertaking. When he received the above letter, good faith on his part required that he comply with the request, as he had impliedly undertaken to do, or give the bailor notice of his declination to do so, or of the proceedings to sell the chattel as the property of Vergos & Kyramis. Where there is an attempt to apply the doctrine of equitable estoppel one essential is that the party in whose favor it is invoked must himself act in good faith. And it has been said that estoppel against estoppel sets the matter at large: Tibbetts v. Shapleigh, 60 N. H. 487. We do not say that Liberakis was estopped to levy on and sell the chattel, taking the chance whether title would pass by the sale, but only that he was not in position to claim an equitable advantage by reason of anything that the bailor had said or done. One purpose for which the defendant offered the plaintiff’s letters and the evidence as to. the action of Liberakis was to show that he was the plaintiff’s agent (a doubtful proposition) and violated his trust, and it is argued that the rule which declares that when one of two innocent persons must suffer, the loss should fall on him whose act or omission made the loss possible, is applicable, and therefore the- loss should fall on the plaintiff. But if the possession of a seller of personal chattels is that of a bailee or trespasser this rule does not apply: Miller Piano Co. v. Parker, 155 Pa. 208. Upon the question of laches the learned judge appropriately says, and we leave that branch of the case without further comment: “We have examined carefully the authorities cited by defendant's attorney. They all hold that where the plaintiff has been guilty of laches, and an innocent purchaser has suffered thereby, the loss cannot fall upon him. No fault can be found with these decisions. They are undoubtedly the law. But the weakness of the defendant in the case now before us is that there was no evidence to show laches on part of the plaintiff. On September 25th, 1907, it wrote Liberakis to return the register. He failed to do so. It again wrote him on October 28th, 1907. In the meantime Liberakis had betrayed the trust reposed in him. In no case that we have been able to find has it been held that the mere delay for thirty-three days to retake property by the owner, would forfeit it to a trespasser.”

Complaint is made of the ruling of the court as to the right of the plaintiff to bring this action, without being properly registered under the Act of April 22,1874, P. L. 108, A similar question was raised in United States Circle Swing Co, v. Reynolds, 224 Pa. 577, in which Justice Potter said: “But in so far as the facts of this case go, they disclose nothing which would forbid the plaintiff, as a foreign corporation, to maintain an action in the courts of Pennsylvania, to recover its personal property. William B. Reynolds who claimed and retained the property, had no contract relations with the plaintiffs, and he would therefore have no standing to object that the plaintiff corporation was doing business in this state, without having complied with the registration act. This principle is clearly set forth.in King Optical Co. v. Royal Insurance Co., 24 Pa. Superior Ct. 527.” In the case cited in the opinion our Brother Henderson speaking for this court said: “A foreign corporation could own personal property in this state prior to the act of 1874, and there is nothing in the statute which denies to them that right. The principal objects of the statute were to bring foreign corporations within reach of legal process and to subject them to the taxing power of the state. It was not intended to deny to them the right of ownership or to effect a forfeiture of title.” As in the cases cited, so here, there is no contractual relation between the plaintiff and the defendant. The defendant is not in position to assert that the plaintiff forfeited its title to the property, either as to him or as to Liberakis or as to Vergos & Kyramis. We are of opinion that the case is fairly within the principle of the two cases cited.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    York City, Appellant, v. Beitzel.

      Municipal lien — Sidewalks—Cities of the third class — Statement of claim — Affidavit of defense — Acis of May 23, 1889, P. L. 277, May 16, 1891, P. L. 75, and June 4, 1901, P. L. 364 — Ownership of street — Life estate.

    1. A municipal claim filed against property in a city of the third class for the construction of a brick sidewalk in front of such property, which shows on its face that it was filed under the provisions of the Act of June 4, 1901, P. L. 364, and by virtue of the Acts of May 23, 1889, P. L. 277, and May 16, 1891, P. L. 75, and their supplements, and sets forth in detail everything required by sec. 11 of the act of June 4,1901, is sufficient to require the defendant to file an affidavit of defense to a scire facias issued upon the claim provided for by secs. 18 and 19 of the statute. In such a case an averment in the affidavit of defense that the pavement is not upon the property of the defendant, but upon the property of the city, is immaterial,
    2. The property which directly abuts upon a public street is subject to the charge for the construction and maintenance of the sidewalk directly in front thereof, without regard to whether the owner of the property is also possessed of the fee in the land over which the street is located.
    3. A life tenant is an owner within the provisions of sec. 1 of the Act of June 4, 1901, P. L. 364, and his estate is properly chargeable for the construction of a sidewalk in front of the property.
    4. It is no defense against a municipal lien filed for the construction of a sidewalk along a public highway actually opened and used as such, that the municipality had adopted a plan which if carried into effect by proper municipal action would result in the widening of the highway.
    5. On a scire facias on a municipal claim filed against a property for the construction of a sidewalk, an affidavit of defense is insufficient which merely avers that the pavement was not constructed according to the ordinance, and fails to state in what respect the construction departed from the provisions of the ordinance.
    6. Where a municipal claim for the construction of a.sidewalk shows that the property was located at the corner of two streets and that the sidewalk was constructed along the two streets, an affidavit of defense is insufficient which avers the claim was “not apportioned to the several pavements on the said streets ” where there is no allegation that the land against which the claim was filed was not a single-property.
    Argued March 9, 1909.
    Appeal, No. 1, March T., 1909, by plaintiff, from order of C. P. York Co., Aug. T., 1907, No. 15, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of York v. Mary J. Beitzel.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Scire facias sur municipal claim for the construction of a sidewalk.
    The material portion of the claim was as follows:
    Under and by virtue of an act of assembly entitled, “An act •providing when, how, upon what property, and to what extent, liens shall be allowed for taxes, and other municipal improvements, and for the removal of nuisances,” etc, approved June 4, 1901, and all other acts of assembly, and ordinances of said city relating thereto, the city of York files this its claim for 199.14 against the hereinafter described property with the improvements thereon, if any, and sets forth the following specifications of claim:
    1. The name of the party claimant is the city of York.
    2. The name of the owner or reputed owner of the property against which this claim is filed is Mary J. Beitzel.
    3. The property against which this claim is filed is described as follows: All that certain lot or parcel of land situate in the ninth ward of the city of York, York county, Pennsylvania, bounded on the north by Salem road or avenue, on the east by property of Annie B. Byert, on the west by Belvidere avenue, and on the south by a twenty-foot wide alley, being known as Nos. 664, 666, 668, 670 and 672 Salem road or avenue, and having a frontage of 100 feet along said Salem road or avenue, and a depth of 135 feet on Belvidere avenue, more or less. The improvements thereon consist of: There are no improvements.
    4. The work for which this claim is filed was done under and by virtue of the several acts of assembly governing cities of the third class, to wit: The Act of May 23, 1889, P. L. 277; the Act of May 16, 1891, P. L. 75, and the several supplements to said acts; and an ordinance of the city of York entitled, “An ordinance relating to paving, curbing, repaving, recurbing and repairing sidewalks and gutters,” approved September 15, 1891.
    5. The work in front of the said property against which this claim is filed was completed on December 11, 1906, as certified by Frank H. Heckert, highway commissioner, who was supervising said work; said certificate being filed with the city clerk of the city of York, on April 9, 1907.
    6. The kind and character of the work for which this claim is filed is as follows: Furnishing the labor and materials for and laying a four-foot wide brick sidewalk along the Salem road or avenue front, and along the Belvidere avenue side of said above-described lot of ground, according to grades and alignments therefor given by the city engineer of said city. The labor furnished for said sidewalk was as follows:
    «l« «1* 4* *1* vl*
    The affidavit of defense was as follows:
    Mary J. Beitzel, against whose property a municipal lien was filed in the above-named case and scire facias issued thereon to the above-named term, files this her affidavit of defense to the scire facias issued thereon, and being duly affirmed according to law, deposes and says, that she has a just, true, legal, full and complete defense to all that part of the lien described therein as follows: “Furnishing the labor and materials for and laying a four-foot wide brick sidewalk along the Belvidere avenue side of said above-described lot of ground according to grades and alignments therefor given by the city engineer of said city,” for the reason that the said pavement so as aforesaid constructed and the amounts charged for the material furnished and the labor, employed and expended on said construction of said pavement is not upon the property of the said Mary J. Beitzel, but the said pavement is constructed upon the property of the city of York.
    That the said Mary J. Beitzel owns only a life estate in the said lot described in this municipal lien.

      That the city councils of the city of York, by ordinance regularly adopted on October 16, 1889, and recorded in city ordinance Docket A, p. 172, adopted Belvidere avenue from Market street southward to College avenue at a uniform width of sixty feet and that from said Market street to Salem avenue the said city of York has opened the said Belvidere avenue for a uniform width of sixty feet and required the laying of pavements and sidewalks for the said width.
    That the said pavement for which a lien has been filed in the above-named case is laid twenty feet westward of the alignment of said Belvidere avenue as adopted and laid out by said city of York under said ordinance adopted and approved October 16, 1889, and recorded in city ordinance Docket A, p. 172.
    That the said pavement on Salem avenue and the said pavement on Belvidere avenue, the labor and material for which are charged in the said above-named municipal lien and scire facias thereon, are neither of them constructed according to the ordinance of the said city of York or any ordinance, and the said pavements so constructed on both Salem avenue and Belvidere avenue are not constructed according to the grade and alignment adopted by the said city of York, and therefore the said Mary J. Beitzel, the abutting property owner, is not liable therefor, all of which matters the defendant will prove at trial.
    The hen is defective and no recovery can be had thereon for the reason that the work and material furnished therefor, and the labor performed and prices paid are not apportioned to the several pavements and the said streets as is necessary for the collection, and the proper defense of the same.
    The court discharged a rule for judgment for want of a sufficient affidavit of defense.

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

      John L. Rouse, city solicitor, -for appellant.
    The claim must contain only such averments as are required to be contained therein by sec. 11 of the Act of June 4,1901, P. L. 364.
    The lien is a pure creature of statute and when the provisions of the statute are followed the court cannot either read into the act or permit the omission from it, of any averment which is made an essential part: Tenth Nat. Bank v. Smith Const. Co., 218 Pa. 581.
    October 11, 1909:
    We are not only not obliged to embody such ordinances in our claim, but we are not bound to prove them in our case in chief: Philadelphia to use v. MacPherson, 140 Pa. 5; Phila. v. Richards, 124 Pa. 303; Erie City v. Willis, 26 Pa. Superior Ct. 459; Allentown v. Ackerman, 37 Pa. Superior Ct. 363. Philadelphia to use v. MacPherson, 140 Pa. 5, is decisive of the case at bar.
    We urge the insufficiency of the affidavit of defense to prevent judgment for that portion of the claim which relates to the sidewalk laid along the Salem avenue frontage of defendant’s lot; and also its insufficiency to prevent judgment for the entire claim: Whitaker v. Phoenixville Borough, 141 Pa. 327; Voilkmar Street, 124 Pa. 320; Kittanning Borough v. Thompson, 211 Pa. 169.
    An examination of the cases in which affidavits to municipal claims have been before the court shows that the requirements of such affidavits of defense are certainly no less imperative than those filed in an action of assumpsit: Harrisburg v. Baptist, 156 Pa. 526; Erie City v. Butler, 120 Pa. 374; Pittsburg v. MacConnell, 130 Pa. 463; New Castle v. Rearic, 18 Pa. Superior Ct. 350.
    If the defendant means that the grade and alignment as adopted by the city were disregarded by the engineer, then we say that the defendant cannot set up the variance as a defense to our claim: Shiloh Street, 165 Pa. 386; McKnight v. Pittsburg, 91 Pa. 273; City v. Hays, 93 Pa. 72; Childs’ App., 179 Pa. 634.

      N. S. Ross, with him H. G. Brenneman, for appellee.
    The case was for a jury: Philadelphia v. Richards, 124 Pa. 303; McCormick’s App., 165 Pa. 386; Holland & Co. v. Sunbury Iron Works, 9 Pa. Superior Ct. 261; Arnold v. Stoner, 18 Pa. Superior Ct. 537.
   Opinion by

Porter, J.,

The court below discharged a rule for judgment for want of a sufficient affidavit of defense, and the plaintiff appeals. The city filed a municipal claim against the property of the plaintiff situate at the southeast corner of Salem and Belvedere avenues, in the city of York; said claim being for the construction of a brick sidewalk in front of the said property, upon both streets. The claim was filed under the provisions of the Act of June 4, 1901, P. L. 364, and described the ordinance under which the work was done and the charge made by its title and the date of its approval, and declared that the lien was claimed “by virtue of the several acts of Assembly governing cities of the third class, to wit, the Act of May 23, 1889, P. L. 277; the Act of May 16, 1891, P. L. 75, and the several supplements to said acts.” The claim, in addition to the foregoing statement of authority, set forth in detail everything required by the eleventh section of the Act of June 4,1901, P. L. 364, and was, therefore, sufficient to require the defendant to file an affidavit of defense to the scire facias which issued upon the claim provided for by the eighteenth and nineteenth sections of the statute: Erie City v. Willis, 26 Pa. Superior Ct. 459; Allentown v. Ackerman, 37 Pa. Superior Ct. 363; Philadelphia v. Richards, 124 Pa. 303; Philadelphia v. MacPherson, 140 Pa. 5; Philadelphia v. Baker, 140 Pa. 11. The twentieth section of the act of June 4, 1901, makes the claim itself “conclusive evidence of the facts averred therein, except in the particulars in which those averments shall be specifically denied by the affidavit of defense.” Was .the affidavit filed by the defendant in this case sufficient?

The allegation of the affidavit that “ said pavement is not upon the property of the said Mary J. Beitzel, but the said pavement is constructed upon the property of the City of York,” is immaterial. ' The property which directly abuts upon a public street is, under our statutes, subject to the charge for the construction and maintenance of the sidewalk directly in front thereof, without regard to whether the owner of that property is also possessed of the fee in the land over which the street is located. The presumption is, in the absence of evidence to the contrary, that the owner of the abutting land is possessed of the fee in the land to the middle of the street in front, but it is the abutting land which is liable for the maintenance of the sidewalk and there is no statute which authorizes any charge for such maintenance upon the land within the line of the street. The allegation that the defendant “owns only a life estate in the said lot described,” is insufficient to prevent judgment. A life tenant is an owner within the provisions of the first section of the act of June 4, 1901, and his estate is properly chargeable for the maintenance of a sidewalk in front of the property: Meanor v. Goldsmith, 216 Pa. 489.

The following allegation of the affidavit of defense: “That the city councils of the City of York, by ordinance regularly adopted on the 16th day of October, 1889, and recorded in city ordinance book docket A page 172, adopted Belvedere Avenue from Market Street southward to College Avenue at a uniform width of 60 feet and that from said Market Street to Salem Avenue the said City of York has opened the said Belvedere Avenue for a uniform width of 60 feet and required the laying of pavements and sidewalks for the said width. That the said pavement for which a lien has been filed in the above named case is laid 20 feet westward of the alignment of said Belvedere Avenue as adopted and laid out by said City of York under said ordinance adopted and approved the 16th day of October, 1889,” does not aver that the property in question abuts upon that part of Belvedere avenue to which the ordinance recited applies. This allegation of the affidavit does, in effect, state that from Market street southward to Salem avenue Belvedere avenue has been opened of a uniform width of sixty feet, but the property of. defendant is on the south side of Salem avenue and does not abut upon that part of Belvedere avenue which is alleged to have been actually widened to sixty feet. If it be assumed that College avenue is south of Salem avenue, then the property does not abut upon that part of Belvedere avenue which is alleged to have been actually widened. The affidavit does not deny that the part of Belvedere avenue upon which the sidewalk in question was laid was a public highway, actually opened and used as such. Even if it be assumed, therefore, that the property in question abuts upon that part of Belvedere avenue referred to by the ordinance of October 16, 1889, the utmost that can be claimed for this affidavit is that it asserts that the property in question abuts upon that part of Belvedere avenue which has not yet been widened, but with regard to which the city has adopted a plan locating a street which if ever carried into effect by a legal opening of the street will result in widening Belvedere avenue. The affidavit does not allege that any municipal action has ever been taken authorizing the opening of Belvedere avenue to the increased width in front of her property. Giving to this branch of the affidavit the most liberal interpretation possible in favor of the defendant it amounts simply to an allegation that the city has adopted a plan Ideating a street which if ever carried into effect by proper municipal action will result in the widening of Belvedere avenue, an existing public highway. The adoption of this plan, merely locating the street as of the additional width, was a declaration by the municipality of contemplated future action, to be carried into effect when, in the judgment of the municipal authorities, conditions might require the widening of the street. The strip of land affected by the proposed widening was not thus made a part of the public highway; in order to make it such the municipality must proceed in a legal manner to open the street to the increased width. The mere location of the street did not entitle the owners of the land which may eventually be taken by the proceeding to widen, to damages, that is a matter which will have to be settled when the municipal authorities determine to open the street to the increased width. The time when the additional strip of land shall be added to and made a part of the existing public highway is a matter exclusively within the discretion of the municipal authorities: Kittanning Borough v. Thompson, 211 Pa. 169. This defendant is now, so far as the allegations- of this affidavit of defense indicate, the owner of the land directly abutting upon Belvedere avenue as now opened and used as a public highway, along which the sidewalk in question was laid, and when the city proceeds to widen Belvedere avenue, if it ever does so, she will be in position to assert a claim for any damage which she may sustain by the appropriation of that part of her property. It is not unusual for municipalities to adopt plans looking to the widening of long existing public highways, without at once proceeding to open the highways to the additional width or even intending such action in the immediate future. The plan locating for the additional width may be adopted and the process of actual widening may be long delayed; a part of the street may be opened to the additional width at one time and other fragments of it from time to time as conditions require. The original street does not lose its character as a public highway, the several parts of its length as they, respectively, are from time to time legally opened to the new width, continue to be parts of the highway, although one part may be wider than another. The duty of the city is to maintain the several parts to the width they have been opened. The extent to which the several parts of the street have legally become a part of the public highway must determine the obligations of the owners of property abutting upon such parts of the street and the charges to which that property is subject. The part of the affidavit of defense above quoted does not aver facts which would sustain a finding that the strip of land twenty feet wide across the westward end of her lot had become a part of Belvedere avenue and is not a sufficient defense to the claim filed by the city.

The allegation that the sidewalk was not “constructed according to the ordinance of the City of York or any ordinance, and the said pavements so constructed on both Salem Avenue and Belvedere Avenue are not constructed according to the grade and alignment adopted by the said City of York, and therefore the said Mary J. Beitzel, the abutting property owner, is not liable therefor,” is entirely insufficient. The affidavit does not deny that the ordinance recited in the claim filed by the city authorized the city to construct sidewalks on Salem avenue and Belvedere avenue at the expense of the defendant. The allegation just quoted manifestly refers, only, to the physical construction of- the pavement; it does not state whether the city had adopted a grade and caused the street to be actually graded, nor does it state how the pavement was laid with regard to the natural grade. It avers that the pavement was not constructed according to the ordinance, but it fails to state in what respect the construction departed from the provisions of the ordinance. This part of the affidavit was at best but an expression of opinions and conclusions, unsupported by specific statements of fact, and is insufficient to prevent judgment: Erie City v. Butler, 120 Pa. 374; Pittsburg v. MacConnell, 130 Pa. 463; Harrisburg v. Baptist, 156 Pa. 526.

The final averment of the affidavit that there can be no recovery because the claim is “not apportioned to the several pavements and the said streets as is necessary for the collection,” is without merit. The affidavit does not allege that the land against which the claim is filed is not a single property. The claim shows that this was a property located on the corner of two streets, and it was proper for the city authorities to require that the entire sidewalk, upon both the streets on which the property directly abutted, should be put into proper condition at the same time; it certainly would be no advantage to the defendant to have this single claim divided, thus subjecting her to the cost of two proceedings. If for any reason it is made to appear that this claim should be apportioned between different parts of the property, the fourteenth section of the act of June 4,1901, affords the defendant a complete remedy. The affidavit of defense was insufficient to prevent judgment.

The order of the court below is reversed and the record is remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.


author: Rice, P. J.,

text:
    Johnston v. Shepard, Appellant.

      Landlord and tenant — Principal and surety — Bond—Bailment—Distress.

    A landlord levied for rent in arrear upon the household goods of his tenant, and also upon two hearses and a casket wagon which the tenant held as bailee. Subsequently the tenant became bankrupt and claimed as his exemption the household goods which had been levied upon. Subsequently the tenant’s father, in order to release the household goods, gave a bond to the landlord, the condition of which was that the obligor should pay any difference between the amount the landlord should receive from the trustee in bankruptcy and the amount of rent due. The bond further stated that it was the purpose and intent of the parties that unless the landlord should receive from the trustee his entire rent claim, the obligor should pay the same, or any portion thereof not paid to the landlord from the bankrupt’s estate. The trustee in bankruptcy disclaimed the hearses and casket wagon and thereafter the landlord assigned the bond to the bailors of the hearses and casket wagon, who paid him the full amount of his rent. Prior to this assignment the obligor notified the landlord that he would insist upon the latter exhausting the remedy he had, by a lien upon the property on the premises, including the hearses and wagon. Held, (1) that the fact that the trustee disclaimed the hearses and wagon did not affect the surety’s obligation to pay according to the plain and unmistakable terms of the bond; (2) that the bailors of the hearses and casket wagon had an equity to have the tenant’s own property first applied to payment of the rent; and (3) that as between the equity of the surety and the equity of the bailors of the hearses and casket wagon, the latter equity was superior.
    Argued April 22, 1909.
    Appeal, No. 131, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 441, for plaintiffs on case stated in suit of William McC. Johnston for use of Joseph G. Cunningham et ah, trading as James Cunningham Son & Company, v. Stephen A. Shepard.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Case stated to determine liability on a bond.
    Shafer, J., filed the following opinion;
    From the case stated it appears that the plaintiff, Johnston, was the owner of lands which he leased to one William H. Shepard, by a written lease containing a waiver of exemption, that Shepard’s rent was in arrears $431 and Johnston levied upon the personal property in Shepard’s possession on the premises upon a distress for rent. It further appears that the property so levied upon consisted of household furniture valued at $254 and other property of Shepard’s valued at $658.52, and two hearses and a casket wagon of which Shepard was bailee under a written contract with James Cunningham Son & Company, the use plaintiff herein, under the terms of which after the payment of a certain amount of rent it was agreed that Shepard should become the owner of the property. Something over one-half of the rental was paid, the other half remaining unpaid, the value of the hearses and wagon being $2,000.
    Some time after the levy, how soon does not appear from the case stated, William H. Shepard became bankrupt, and claimed as exempt under the bankruptcy law, the household goods above mentioned.
    Desiring to obtain possession of these household goods William H. Shepard procured his father, Stephen A. Shepard, the defendant herein, to execute and deliver his bond to the plaintiff in the sum of $431, conditioned by the payment to Johnston of the sum of $431, less any amount which Johnston should receive on account of his rent claim from the trustee in bankruptcy. This bond was given, as set out in the case stated, on consideration of the release of the household goods above mentioned, and upon its execution Johnston released from his levy these household goods, and they were taken into the possession of William H. Shepard, Johnston in the meantime retaining his levy upon the other property. About three months after the bankruptcy the defendant notified the counsel of plaintiff that he would insist upon the landlord exhausting the remedy he had by a lien upon the property on the premises, including the hearses and wagon, and that he would claim not to be bound by the bond in suit unless that were done. About the same time the trustee in bankruptcy disclaimed the hearses and casket wagon, declining to pay the balance of the rental which would enable him to take possession of them as the property of the bankrupt, and shortly thereafter James Cunningham Son & Company agreed with Johnston to purchase his bond from him, and paid him the sum of $431, whereupon Johnston released the hearses and wagon from his claim for rent, and the bond was thereafter assigned in writing to the Cunningham company. It is agreed in the case stated that certain definite judgments therein set out may be entered by the court, or that the court may render such other judgment as in its opinion may be warranted by the facts.
    Cunningham & Son, the use plaintiffs, having purchased the bond, are entitled to use it precisely as Johnston might have done, and in his name. The sole question, therefore, is whether Johnston was bound in relief of the defendant to proceed with his distress. If all the goods had been the property of the tenant there might be some force in the contention of defendants, that the plaintiff having received the bond in consideration of the release of the household goods, ought to have understood that the other goods were to be pursued by him, although this is at least doubtful. There can be no question that one who is surety of the payment of rent cannot ordinarily require the landlord to distrain for the rent in his relief, Ruggles v. Holden, 3 Wendell, 216, and one who, after distress and levy, gives a bond conditioned for the payment of all the rent which the landlord shall not receive from the trustee in bankruptcy ought scarcely to be heard to say that such a condition meant that he was to pay only what the landlord did not receive from the trustee in bankruptcy or from the proceeds of his levy.
    But, however this may be, in the present case the hearses and wagon, the release of which is complained of, did not belong to the tenant, but were levied upon because they were found upon the premises. If they had been sold for the rent, the owners would have had an action against the tenant for their value, and these owners had an equity to have the property of the tenant first applied to the payment of the debt. The defendant then comes into the case and by a bond given for the very purpose, takes away from the property subject to the levy $254 worth of goods which belong to the tenant, his principal and the owners of the hearses, and which ought to have been sold first to pay the rent. As between any equity he may have had to require the landlord to sell the goods he distrained upon, and the equity of the owners of the hearses to be relieved by the goods of the tenant himself, we are of opinion that the latter equity is superior, and that, therefore, the release of the hearses by the plaintiff does not relieve the defendant from the duty of keeping the condition of his bond, which is to pay all the rent not received by the plaintiff from the trustee in bankruptcy.
    It is shown in the case stated, that this amount is $420.65. We are of opinion, therefore, that the plaintiff is entitled to judgment for the penalty of the bond, to be released upon the payment of $420.65, with interest from June 13,1906, and judgment is entered accordingly.
    October 11, 1909:

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

      Elmer L. Kidney, for appellant.
    The hearses and casket wagon were liable to distress for the rent: Myers v. Esery, 134 Pa. 177; Price v. McCallister, 3 Grant, 248; Bevan v. Crooks, 7 W. & S. 452.
    The equitable plaintiffs could not have required Johnston, the landlord, to insist upon his waiver of exemption and to exhaust the tenant’s household goods before having recourse to the hearses and casket wagon: Peak’s App., 81* Pa. 76; McCowen v. Eisenbuth, 2 Pearson, 262; Kehler v. Dunkleberger, 2 Leg. Rec. R. 271; Temple v. Gough, 9 Pa. C. C. Rep. 85.
    Courts favor the right to the benefit of the exemption laws: Fitler’s Est. 14 W. N. C. 62.

      C. C. Dickey, of Shiras & Dickey, for appellees.
    A surety has no right to call upon the landlord to distrain the tenant’s goods for rent in arrear: Ruggles v. Holden, 3 Wend. 216.
    That the defendant had no equity against the plaintiffs we think is settled by the opinion of the Supreme Court in Brown v. Sims, 17 S. & R. 138, holding that goods placed in the way of trade on storage are not liable to distress for rent: Riddle v. Welden, 5 Wharton, 9.
    A tenant on whose premises the property of a stranger is seized for rent is liable over to the stranger: O’Donnel v. Seybert, 13 S. & R. 54.
   Opinion by

Rice, P. J.,

The majority of the judges of this court who heard the case are clearly of opinion that the judgment should be affirmed for the reasons given by the learned judge of the common pleas. In view, however, of one phase of the argument of the learned counsel for appellant it seems proper to emphasize by repetition the proposition that lies at the foundation of the case, that, the words of the condition of the bond were not “that the remainder of the property levied upon should be sufficient to pay the rent in arrear,” which, perhaps, might have left room for argument that what was meant was that all the property levied upon should prove sufficient in value to satisfy the rent, but that the obligor should pay “any deficit or difference between the amount said Johnston shall receive from the trustees in bankruptcy of the estate of his son, William H. Shepard, . . . . upon the final distribution thereof, upon the said claim for rent to be properly filed and proved before the referee, and the said $431.” Then to remove any possible doubt as to the meaning and purpose of the bond, the parties out of abundant caution added the words, “the purpose and intent of this bond being, that unless the said Johnston shall receive from the trustee in bankruptcy his entire rent claim of $431 that the said obligor shall pay the same, or any portion thereof not paid to said Johnston from said bankrupt estate.” Whether or not the parties actually expected that the trustee in bankruptcy would disclaim, by leave of court, the hearses and casket wagon, and thus separate them from the bankrupt estate, we have no means of knowing; nor is that a material question. They must be deemed to have contracted with knowledge that such contingency might lawfully happen, hence the fact that it did happen cannot affect the defendant’s obligation to pay according to the plain and unmistakable terms of his bond. The construction of the bond being free from doubt, the sole question is, as the learned judge says, whether Johnston was bound in relief of the defendant to proceed with his distress upon goods of a bailor of the tenant which were liable only because they were found on the premises. We can add nothing profitably to the opinion of the learned judge in support of the conclusion that he was not bound so to do.

Judgment affirmed.


author: Head, J.,

text:
    S. V. Thompson Company v. Goldman, Appellant.

      Principal and agent — Real estate broker — Commissions—Securing purchaser.

    1. Where the owner of a licensed hotel gives a real estate broker the right to sell the licensed business and furniture, fixtures and personal property incident thereto, and a lease for years of the real estate itself, and further agrees to give the broker ten days’ written notice of an intention to withdraw the sale of the business from the agency of the broker, and the owner sells the property to a purchaser without any aid whatever from the agent, and without having revoked the agency, the agent will be entitled to recover compensatory damages for money expended and time and labor devoted towards the accomplishment of the sale, even if he has not brought a purchaser to his principal.
    2. In such a case the agent is not entitled to the full commissions specified in the contract of agency by entering into an agreement with a purchaser to sell, not only the licensed business, with its incidents and the lease of the real estate, but also the real estate itself; nor will he be entitled to his commissions if the agreement of sale is conditional upon the proposed purchaser securing a loan of an amount specified, if there is no evidence to show that purchaser had the financial ability to borrow such a sum and satisfactorily secure its repayment.
    3. In an action by the agent against the owner to recover his full commissions, the plaintiff must show that he had procured for the defendant a party with whom the defendant was satisfied, and who actually contracted for the property at a price acceptable to the owner; or that it was through his efforts that the purchaser was secured, to whom the defendant after he wrongfully took the matter out of the agent’s hands, made the sale; or that even if he had not secured any binding contract from the proposed purchaser, he had actually produced to his principal a purchaser able and ready to perform his part of the proposal, so that the failure to complete an actual sale resulted alone from the fault or inability of the principal.
    Argued May 10, 1909.
    Appeal, No. 24, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., June T., 1907, No. 204, on verdict for plaintiff in case of S. V. Thompson Company v. D. A. Goldman.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover commissions for the sale of real estate. Before Patton, P. J.

      The court charged in part as follows:
    This is what is known in law as an action of assumpsit, brought by S. V. Thompson & Co. against David A. Goldman, to recover the sum of $612.50, with interest from April 16, 1907, being the amount that the plaintiffs claim is due them by reason of their having acted as real estate agent in the sale of Mr. Goldman’s hotel property, known as the Commercial Hotel, in the borough of Ford City. On the part of the plaintiff, they offered in evidence a written contract, dated April 16, 1907, and signed by D. A. Goldman, in which he agrees and says, “I have this day placed in the hands of S. V. Thompson Co., hotel business, described in detail below, for sale, and hereby constitute them my sole agents, with the exclusive right to dispose of the same at the stipulated price of $12,500, or, such sum as may be agreed upon later.

      “ For their services, I agree to pay them a commission of five per cent, on the sale of the same. And I further agree to give them ten days’ written notice of my intention to withdraw the business from their agency.”
    Then follows paragraphs, giving all the description of the property. There is no dispute in this case that Mr. Goldman executed this contract with the plaintiff. Mr.. Thompson is called on the witness stand, and he testified that it was in pursuance of that contract that his company proceeded to advertise this property and to hunt for purchasers, and that in pursuance thereof on May 21,1907, the S. V. Thompson Company entered into an agreement with a certain Wilson & Shaffer to sell them this particular property, for the sum of $12,250. So far as that is concerned there is no dispute in the case.
    The first dispute arises in this way. You will notice the first contract was that Mr. Goldman authorized these people to sell for the sum of $12,500. The agents entered into a contract to sell for $12,250, dropping $250, while the contract called for a sale at $12,500, or such sum as might be agreed upon later. If I recollect the testimony, but it is entirely for the jury to say how this is, the plaintiff testified that when he sold this property to Wilson & Shaffer for $12,250, that Mr. Goldman agreed to that, and consented to that reduction, If I recall the testimony correctly, Mr. Goldman, so far as that is concerned, does not deny that he did agree that they should sell for $12,250. If that is the testimony, then that difference would be brushed away, but if you find that Mr. Goldman denies that, then it would be a question for the jury to determine whether Mr. Thompson is telling the truth or Mr. Goldman is telling the truth as to that particular.
    The second difference, set up by the defendant, is that Mr. Goldman only authorized these agents to sell the furniture, fixtures and good will of the hotel, and that their agency did not include authority to sell the real estate. [From the reading of the article of agreement, that would seem to be true, and when these men, composing the S. V. Thompson Company came to sell to Wilson & Shaffer, they not only included the furniture, fixtures and good will, but they also included the real estate. Now, that would be a very serious discrepancy if there was nothing else in the way to explain that. Mr. Thompson is called, and also Mr. Hunter, on the part of the plaintiff, and they say that this second agreement was submitted to David Goldman at Pittsburg, when they came to talk this matter over, and that after an examination of it, he said that it was all right, and that he was satisfied with the contract. If that is true, then there evidently was a misunderstanding of the paper, or the paper was not drawn up correctly.] [1] [If this paper was drawn up between the S. Y. Thompson Company on the one side, and Wilson & Shaffer on the other, and if that was submitted to Mr. Goldman, and he, in the presence of Mr. Thompson and Mr. Hunter, said that the agreement was all right, and for them to go ahead with it, and he would stand over it, then Mr. Goldman could not now at this late day, repudiate that contract.] [2] [Mr. Goldman admits that the contract was shown to him, but he said that he did not read it, and paid no attention to it.- Gentlemen of the jury, there is another discrepancy, that you-will have’to decide.-' If you believe that, taking all the surrounding facts and circumstances into consideration, that these two men, Mr. Thompson and Mr. Hunter, showed .this agreement to Mr. Goldman, and he said that it was all right, and he understood it, then he could not at this late day escape from paying his commission by setting up such a difference as that.] [3]
    A third defense set up by Mr. Goldman is, that this sale was not completed, that although the Thompson Company made an agreement to sell this property to Wilson & Shaffer for $12,500, that Wilson & Shaffer never paid the money. It is an admitted fact that Wilson & Shaffer did not pay the money. Hence, if there was nothing else in the way, the Thompson Company could not recover their commission for something they did not sell, but the contention of the plaintiff is this, they say, and you will notice in this first contract, Mr. Goldman agrees to give them ten days’ written notice of his intention to-withdraw the sale of that property from their agency. Now, it is admitted that Mr. Goldman never did give them any written notice that he withdrew that property from their agency.
    [Gentlemen of the jury, we instruct you that if you believe that testimony, and it is uncontradicted, that Mr. Goldman never did withdraw this property from their agency, but turned around and on May 7, sold it to Mr. Morrow, and, therefore, put it out of his hands to comply with his contract with the S. V. Thompson Company, then the plaintiff could recover, notwithstanding that the property was not sold to Wilson & Shaffer, because Mr. Goldman, having made a contract of that kind to not withdraw the property from the hands of these men without ten days’ written notice, could not after they had gone to the expense of hunting and finding a purchaser, sell to another man, and thereby deprive them of their commission for their labor.] [4] He could not take advantage of his own wrong, and his own fault, and thereby deprive these men of their commission. If he wanted to do that he should have served written notice on them that he withdrew the property from their agency, and that would have given them ten days in which to complete their sale. [If he had done that Mr. Goldman would not have to pay them their commission, but if he did not withdraw the property from their agency, then they would be entitled to their commission, notwithstanding the fact that they did not complete the sale.] [5]

      November 8, 1909:
    Verdict and judgment for plaintiff for $642.50. Defendant appealed.

      Errors assigned among others were (1-5) above instructions, quoting them.

      R. L. Ralston, for appellant.
    The court cannot say as a matter of law that the broker if given the additional ten days would have earned his commission, and that being deprived of them he has suffered damages to the extent of the commission: Adams Express Co. v. Egbert, 36 Pa. 360; Blackstone v. Buttermore, 53 Pa. 266; Jaekel v. Caldwell, 156 Pa. 266; Hill v. Jones, 152 Pa. 433; Black v. Pentony, 30 Pa. Superior Ct. 38; Kelly v. Marshall, 172 Pa. 396; Kifer v. Yoder, 198 Pa. 308.
    A broker is not entitled to commissions if he secures a conditional purchaser, and his authority is revoked before a sale is made: Vincent v. Woodland Oil Co., 165 Pa. 402.
    In an action to recover commission for the sale of real estate there can be no recovery where the plaintiff was not the efficient cause of effecting the sale, or of bringing the purchaser and owner of the property together: Johnston v. Seidel, 150 Pa. 396; Burchfield v. Griffith, 10 Pa. Superior Ct. 618; Pierce v. Truitt, 21 W. N. C. 569; Clark v. Lindsay, 7 Pa. Superior Ct. 43.

      Floy C. Jones, for appellee,
    cited: Seabury v. Fidelity Ins. Trust & Safe Dep. Co., 205 Pa. 234.
   Opinion by

Head, J.,

As the case of the plaintiffs is presented in the pleadings and record, their right to recover the amount of the commission represented by the verdict was rested on their ability to establish two propositions of fact: (a) That the defendant had entered into a contract with them, by the terms of which he obliged himself to pay upon certain conditions the sum sued for; (b) that the conditions necessary to make that undertaking an absolute one had been complied with by them.

As to the first proposition they experienced no difficulty because it was admitted that such a contract had been executed, and as it had been reduced to writing and was offered in evidence, there is no room for dispute as to its terms. By this agreement the plaintiffs were given the right to sell and dispose of certain property of the defendant, to wit: the hotel business he was conducting as a licensed landlord, and furniture, fixtures and personal property in and on the licensed premises, and a lease for years of the real estate itself. The agreement then declared “for their services I agree to pay them a commission of five per cent on the sale of the same,”

Now it is an undeniable fact in the record before us that the only sale of the property covered by the agreement actually made and completed was made by the defendant himself to one W. H. Morrow. It is not contended that the plaintiffs had anything whatever to do with this sale. They had never had any negotiations- with Morrow. It was not through their efforts, or by reason of any information derived from them, directly or indirectly, that the purchaser and seller were brought together. This negotiation was begun and completed without the knowledge of the plaintiffs and received .no aid from their efforts. They cannot, therefore, recover the stipulated commission because of anything they did in connection with the actual sale of the property and the transfer of the title from the defendant to Morrow.

Numerous decisions in Pennsylvania have construed contracts similar to the one before, us, and an examination of these cases will show that the plaintiffs, under certain conditions, might still recover the amount of the commission claimed notwithstanding the facts already recited. In Keys v. Johnson, 68 Pa. 42, it is said: “A broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is-satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner. . . . When he — the broker — has commenced a negotiation with a purchaser, the owner cannot, while such negotiation is pending, take the matter into his own hands and complete' it either at or below the price first limited, and then refuse to pay the commissions.” In Middleton v. Thompson, 163 Pa. 112, Mr. Justice Mitchell, after reviewing a number of the decisions on the subject, says: “These cases show clearly that a binding contract is not essential where the party produced by the broker stands ready to perform his part of the proposal, and the failure to do so occurs through the fault or inability of the principal.”

Was there any evidence, then, in the light of these decisions to warrant the jury in finding that the services contemplated by the agreement had been performed by the plaintiffs? Their contention is that they had negotiated a sale with an entirely different party, to wit: Wilson & Shaffer, of Franklin. In support of this contention they offer in evidence a written agreement entered into between them, acting for their principal, and the said Wilson & Shaffer. An examination of this agreement standing alone would apparently show that when it was made the plaintiffs had wholly misconceived the scope and extent of their own authority, because in that instrument they undertook to sell and convey not merely the hotel business with the personal property, lease, license, etc., which they were authorized to sell, but also to sell and convey in fee simple the real estate itself which they, agreed they had no right to offer. Thus on the face of the paper, introduced by themselves to support their allegation that they had performed their part of the contract, it appeared that they had greatly exceeded their authority and placed their principal in a position he had never intended to assume.

To avoid this difficulty the plaintiffs themselves testify that their contract with Wilson & Shaffer did not in fact mean what its written language undeniably imports; that the mistake occurred by reason of the use of a printed form of contract designed for use only in sales of real estate, and that in fact Wilson & Shaffer thoroughly understood that they were agreeing to buy and pay for only the hotel business, etc., which the defendant had authorized the plaintiffs to sell. There was evidence, therefore, from which the jury could find that so far as the plaintiffs are concerned, they did not intend to do anything more than they were authorized to do. It is to be noted, however, that there is no evidence from either Wilson or Shaffer as to what their understanding was, and the learned court' below and the jury could not in the absence of such testimony reach any conclusion binding on them that they had ever contracted to pay the price named for the hotel business and fixtures merely.

But passing this difficulty and looking further at the terms of that contract, it appears that Wilson & Shaffer entered into no absolute obligation to buy anything. Their undertaking to purchase whatever might be construed to be the subject-matter of their written contract was conditional on their ability to secure a loan of $7,250, to be repaid in two annual installments. There is no evidence to show whether or not they had the financial ability to borrow such a sum of money and satisfactorily secure its repayment, and the assertion that they could have secured such a loan and thus become bound by an absolute contract to purchase something rests on nothing more than conjecture.

It appears then that the plaintiffs were in no way concerned with the sale that was actually made and did nothing in connection with that transaction. It is equally clear that they had commenced no negotiation with the purchaser who actually completed the sale, nor did they produce to their principal a purchaser able and ready to perform his part of the proposal, so that the failure to complete their sale resulted solely through the fault or inability of their principal. As the record now stands, therefore, they have not shown a case where under any of the decisions cited they can successfully assert their right to recover the commission provided for in their agreement.

But it does not follow that because the plaintiffs were not in a position to recover in bulk the amount of the commission, 'they were not entitled to maintain their action at all or to recover any sum. In his written agreement with them the defendant had plainly stipulated and agreed that he would “give plaintiffs ten days’ written notice of his intention to withdraw the said business from their agency.” This covenant of his contract the plaintiffs had a right to expect he would perform, as their right to sell was to be exclusive until the defendant saw fit to revoke their commission in the manner named. Failing one purchaser, they might have secured another before the defendant could lawfully withdraw his property from their agency. The plaintiffs testify that there was a clear breach of this covenant on the part of the defendant, and their testimony was ample to carry that question to the jury, and, if believed, to warrant a finding in their favor. For a breach of that covenant they would be entitled to recover compensatory damages.

In Blackstone v. Buttermore, 53 Pa. 266, it is said: “The interest of the agent was only in his compensation for selling, and without a sale this is not earned. A revocation could not injure him. If he had expended money, time or labor, or all, upon the business intrusted to him, the power itself was a request to do so, and on a revocation would leave the principal liable to him on his implied assumpsit.” In Black v. Pentony, 30 Pa. Superior Ct. 38, Mr. Justice Orlady said: “If they — the principals — -withdrew for a good reason, as explained in Cronin v. Sharp, 16 Pa. Superior Ct. 76, they would be liable for nominal damages only. However, if they did not act in good faith and withdrew from the transaction as a mere subterfuge in order to secure a higher price, or to relieve themselves from the payment of the plaintiff’s claim, he was entitled to proper compensation for his time, labor and expenses incurred in good faith in the defendants’ interest.” In Kifer v. Yoder, 198 Pa. 308, it is said: “It is always incumbent upon a broker seeking to recover a commission, to prove either that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy, and the failure to make an actual sale was through no fault of the broker or his customer. ... A real estate broker is employed as the agent of the vendor, for the purpose of effecting a sale. Until he accomplishes the object of his employment he is not entitled to his commission.”

If then, relying on the covenant in their agreement, the plaintiffs had incurred expense by way of advertising the property, seeking purchasers by correspondence or otherwise, or devoted time, labor or money towards the accomplishment of the object contemplated by their agreement, they would be entitled to such a verdict as would make good any loss sustained by reason of the breach of the covenant referred to. The case, therefore, was tried upon a mistaken principle and must go back to be retried along the lines indicated in this opinion.

If the plaintiffs are to recover the commission named in their contract for a sale of the property, they must show that they had procured for the defendant a party with whom he was satisfied, and who actually contracted for the property at a price acceptable to the owner; or that it was through their efforts that the purchaser was secured to whom the defendant, after he wrongfully took the matter out of their hands, made the sale; or that even if they had not secured any binding contract from a proposed purchaser, they had actually produced to their principal a purchaser able and ready to perform ' his part of the proposal, so that the failure to complete an actual sale resulted alone from the fault or inability of the principal. If they are not thus able to show a state of facts upon which they may rightfully assert that they had done everything contemplated in their contract with the defendant, then their right to recover must be confined to compensatory damages for the alleged breach by the defendant of his covenant not to withdraw the sale of the property from their agency until after ten days’ written notice of his intention so to do.

The principle controlling the main question involved in this appeal is thus stated by Mr. Justice Elkin in the recent case of Turner v. Baker, 225 Pa. 359, reported since the foregoing opinion was written: “ It is contended that appellant was constituted the exclusive agent of appellee to sell his hotel property, and that any sale made while the contract of exclusive agency remained in force, either through the efforts of the broker or by the principal, entitles the broker to- recover his commission although he was not instrumental in effecting the sale. In some jurisdictions the rule does seem to be laid down as broadly as above stated, but this is not the law in Pennsylvania. . . . The appellee did constitute appellant his sole agent to sell a hotel property at a stipulated price, and agreed to pay him a commission for his services. He further agreed that the broker should have the exclusive right to dispose of the property and that written notice should be given ten days before the withdrawal of the business. The broker did not make a sale, the principal did. The principal did not give the ten days’ withdrawal notice as required by the contract which the broker insists was still in force when the sale was made by the principal. The right to recover the commission under these circumstances is asserted on two grounds, first, that a sale made by any person while the contract remained in force entitled the broker to the stipulated commission, and, second, that the commission was earned by the broker producing a purchaser who was ready, able and willing to buy the property. The first position cannot be sustained for the reasons herein-before stated. The second contention depends upon the facts. If in point of fact the broker had produced a purchaser ready, able and'willing to buy upon the terms of the contract, and while it remained in force, he would clearly be entitled to his commissions under the rule of all the authorities. This is the pinch of the case and it is almost entirely a question of fact.”

Judgment reversed, and venire facias de novo awarded.


text:
    Goldstein, Appellant, v. Fritzius.

      Practice-, C. P. — Rules of court — Bill of particulars — Judgment—Opening judgment — Appeals.
    1. Where a rule of court provides that the plaintiff may rule the defendant to furnish him with a bill of particulars of his defense, or in default thereof after twenty days after notice, judgment “may be entered against the defendant,” and the rule further provides that on the trial the defendant shall be confined to the defense he may have set up in the answer to the rule, the plaintiff has no authority to pass upon the sufficiency of the answer filed by the defendant, and, if he thinks it insufficient, to enter a judgment by default. The sufficiency of the answer must be determined by the court.
    2. Where a petition of a defendant in a judgment prays for the opening or striking off of the judgment, and the court at first grants a rule to strike off, such rule may subsequently be amended by making it a rule to open or strike off.
    3. In such a case if the court makes absolute the rule to open the judgment, the plaintiff may appeal from the order under the Act of May 20, 1891, P. L. 101.
    Argued April 15, 1909.
    Appeal, No. 25, April T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 181, making absolute rule to strike off judgment in case of Nathan Goldstein v. George B. Fritzius and William Nolan.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Rule to open or strike off a judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned among others was the order of the court.

      H. M. Scott, for appellant.
    Plaintiffs judgment was valid: Stell v. Moyer, 9 Pa. Dist. Rep. 516; Standard Underground Cable Co. v. Johnstown Tel. Co., 26 Pa. Superior Ct. 432; Lewis v. Keck, 2 Northampton, 345; Dawes v. Wood, 2 Northampton, 80; Reed v. Pedan, 8 S. & R. 263; Curtis v. Hubbell, 8 W. N. C. 367; Hays v. Sample, 1 Pitts, 269; Bank v. Flanigan, 15 Phila. 102; Taylor v. Nyce, 3 W. N. C. 433.
    The court had no power to strike off plaintiff’s judgment: Johnson v. Ins. Co., 218 Pa. 423; Western Nat. Bank v. Cotton Oil & Fiber Co., 35 Pa. Superior Ct. 47.
    The action of the court in changing defendants’ rule to strike off into a rule to open plaintiff’s judgment, after said rule to strike off had been argued, and without prior notice to plaintiff, and subsequently making said rule to open plaintiff’s judgment absolute, was an abuse of judicial discretion: Long v. Morningstar, 212 Pa. 458; Stevens v. Ross, 1 Cal. 94; Humphrey v. Tozier, 154 Pa. 410.

      Joseph F. Mayhugh, for appellees.
    The right to a bill of particulars under rule No. 119 and under the practice in the courts in Allegheny county is only by grace and is a matter for the determination of the court: Furbush v. Phillips, 2 W. N. C. 198; Glaser v. Lewis, 14 W. N. C. 223; Harding v. Bunnell, 14 Pa. C. C. Rep. 417.
    October 11, 1909:
    There was no abuse of judicial discretion on the part of the court in opening the judgment: Allen v. Krips, 119 Pa. 1.
    A judgment entered while a rule for a bill of particulars is pending will be stricken off: Pfaelzer v. Pullman Palace Car Co., 2 W. N. C. 324.
    The court had power of its own volition to amend the rule in this case: Luzerne County v. Miller, 12 Luzerene L. R. 112.
    Every court is the best judge of its own rules: Coleman v. Nantz, 63 Pa. 178; Livingston v. Kerbaugh, 30 Pa. Superior Ct. 534.
   Opinion by

Porter, J.,

The plaintiff appeals from an order of the court below opening a judgment entered against the defendants for alleged failure to comply with a rule of that court. The rule in question is in the following language: “In actions of assumpsit and trespass, the plaintiff may, at any time before the cause is put on the trial list, and thereafter by leave of court, rule the defendant to furnish him with a bill of particulars of his defense. And in default thereof, for twenty days after notice, judgment may be entered against the defendant on proof of notice and default; and on trial the defendant shall be confined to the defense he may set forth in the answer to the rule, unless amendment be allowed by the court for cause shown.” There was also a rule of the court below providing for the entry of 'judgments by default, generally, viz.: “Judgments by default shall be entered by the prothonotary on prsecipe of the party entitled thereto, or his attorney, which prsecipe shall be filed.” The plaintiff brought an action of trespass against the defendants on May 2, 1907, the writ being returnable to the first Monday of the same month, and the summons was served on May 3,1907. An appearance was duly entered for the defendants and, on May 13, the plaintiff entered a rule on the defendants to furnish a bill of particulars of their defense “within twenty days, or judgment according to rule;” and a copy of this notice was served on the attorney for the defendants on the following day. The attorney for the defendants, on May 31, 1907, filed in the court an answer to this rule and at the same time filed a plea of not guilty, as required by the procedure act of 1887. The plaintiff assumed the authority to adjudge as insufficient the answer to the rule filed by the defendants and, on June 11,1907, filed with the prothonotary a pracipe stating that the defendants Had failed to comply with the requirements of the rule above quoted and directing the entry of judgment against the defendants, in default, and that officer did enter a general judgment in favor of the plaintiff and against the defendants.

The defendants, after the expiration of the term at which the judgment was entered, presented to the court below their petition, verified by affidavit, setting forth that they first learned of the entry of this judgment by default on February 6, 1908. This petition set forth facts which, if true, constituted a complete defense to the cause of action asserted by plaintiff in his statement of claim; and, in addition, averred that the judgment by default had been irregularly entered, that defendants had filed an answer to the bill of particulars as required by the rule of court and that under the law and the rule it was for the court to determine upon a hearing whether that answer was sufficient, and that it was not for the plaintiff, or his counsel, to pass upon the sufficiency of that answer and enter a summary judgment by default. The petition prayed that a rule be granted on the plaintiff to show cause why the judgment should not be opened or stricken from the record and that the defendants be permitted to file a bill of particulars, if under the law and rules of court they were required so to do. The court upon presentation of this petition granted a rule on the plaintiff to show cause why the judgment should-' not be stricken from the record. The plaintiff filed an answer to this rule not denying any fact set forth in the petition, but asserting that the judgment had been regularly entered and denying the jurisdiction of the court to strike it off. The court, on motion of counsel for defendants, subsequently amended the rule so as to-read; “Rule'granted to show cause why the judgment at the above number and term should not be opened or stricken from the record.” The plaintiff was served with written notice of this amendment of the rule, but contented himself with objecting and excepting to the amendment, and still declined to make any denial of the facts averred in the petition of the defendants. The plaintiff permitted six weeks after notice to elapse without making any attempt to deny the facts averred in the petition of the defendants to open the judgment, and when the case was reached on the argument list the court made absolute the rule to open the judgment. The plaintiff appeals, from this order.

The authority of a court to open a judgment for a default, of the character involved in this case, during or after the term at which the judgment was entered, has been too long and too well recognized to require serious discussion. It is not necéssary in this case to consider the question of the power of the court to strike off a judgment the record of which is regular. The court below did not strike off the judgment. The petition presented by the defendants prayed for the opening or striking off of the judgment. The court it is true at first granted a rule merely to strike off, but the petition prayed for the rule to open the judgment, and it was proper for the court to amend the rule, making it a rule to show cause why the judgment should not be opened or stricken off, as prayed for in the petition, which certainly contained sufficient averments to warrant a rule to open the judgment. An application to open a judgment is an equitable proceeding, addressed to the discretion of the court. The appeal which the plaintiff now presents is authorized by the Act of May 20,1891, P. L. 101, which like the prior Act of April 4,1877, P. L. 53, allowing an appeal from the refusal to open a judgment entered by confession, leaves undisturbed the discretion of the court in which the judgment is entered; but allows an appeal, in the consideration of which, however, the appellate court will only determine whether the discretion, has been properly exercised: Kelber v. Plow Company, 146 Pa. 485, and Pennock v. Kennedy, 153 Pa. 579.

The rule of the court below required that an answer should be filed by the defendants, to the rule entered by the plaintiff for a bill of particulars. The defendants did file an answer. The petition presented by the defendants, praying the court to open or strike off the judgment, squarely raised the question whether, under such circumstances, the plaintiff was vested with author-' ity to pass upon the sufficiency of the answer and, if he thought it insufficient, enter a judgment by default; or whether the sufficiency of such an answer was a question to be passed upon by the court. The decision of the court below was, in effect, a construction of its own rule; holding that when an answer had been filed to a rule for a bill of particulars, the sufficiency of that answer must in each case be determined by the court, and not by the counsel for the plaintiff. We are. certainly not prepared to say that such a construction of the rule hereinbefore quoted was clearly erroneous.

The order of the court below is affirmed and the record remitted with a procedendo.


author: Henderson, J.,

text:
    Hart, Appellant, v. Lehigh Valley Railroad Company.

      Mechanics’ liens — Notice to owner — Subcontractor—Act of June 4,1901, P. L. 431.
    1. The notice required to .be given by a subcontractor to the owner under the mechanics’ lien Act of June 4,1901, P. L. 431, must set forth the contract and the amount alleged to be still due “and how made up.” This provision is obligatory on him who would claim' the benefits of the statute. Compliance with that which is specifically directed is necessary to secure a lien. Substantial conformity will not answer as to that.
    2. A notice is insufficient which avers that the contract was partly verbal and partly written, but does not set forth the written orders, or show what part was written, or what part was oral, and does not show the quality, quantity and price of the several bills of materials furnished.
    Argued Nov. 20, 1908.
    Appeal, No. 215, Oct. T., 1908, by plaintiff, from order of C. P. Bradford Co., May T., 1906, No. 3, making absolute rule to strike off mechanic’s lien in case of I. S. Hart v. Lehigh Valley Railroad Company, Owner, and H. O. Hanson, Contractor.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Rule to strike off mechanic’s lien. Before Fanning, P. J.

      November 8, 1909:
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule to strike off mechanic’s lien.

      H. F. Maynard, of H. F. Maynard & Son,

    cited: Thirsk v. Evans, 211 Pa. 239; American Car, etc., Co. v. Water Co., 215 Pa. 520; Knabb’s App., 10 Pa. 186; Este v. R. R. Co., 27 Pa. Superior Ct. 521.

      Henry Streeter, with him Davies & Davies, for appellee,
    cited: Knelly v. Horwath, 208 Pa. 487; Howard v. Allison, 12 Pa. Dist. Rep. 117; Wolf Co. v. R. R. Co., 29 Pa. Superior Ct. 439; Gray v. Dick, 97 Pa. 142; McFarland v. Schultz, 168 Pa. 634; King v. First Brothers Ch., 14 Pa. Dist. Rep. 265; Bank v. Smith Construction Co., 218 Pa. 581; Mock v. Roscoe, 9 Del. Co. Rep. 286; Westmoreland Guarantee B. & L. Assn. v. Connor, 216 Pa. 543.
   Opinion by

Henderson, J.,

This case comes up on an appeal from the judgment of the court below making absolute a rule to strike off a mechanic’s lien. The claimant was a subcontractor. The action of the court was based on the insufficiency of the notice to the owner of an intention to file a lien, required by the eighth section of the Act of June 4, 1901, P. L. 431. The objection to the notice was that it did not contain a statement setting forth the contract under which the claim was made nor how the amount was made up as required by the eighth section of the act referred to. It is expressly required by this statute that the notice contain a sworn statement “setting forth the contract” and the amount alleged to be still due “and how made up.” This provision is obligatory on him who would claim the benefits of the statute. Compliance with that which is specifically directed is necessary to secure a lien. Substantial conformity will not answer as to that: Westmoreland Guarantee B. & L. Assn. v. Connor, 216 Pa. 543; McVey v. Kaufmann, 223 Pa. 125; Wolf Co. v. Penna. R. R. Co., 29 Pa. Superior Ct. 439. Turning then to the notice filed we find the following statement of the amount due and how made up: “The amount now due me is Fourteen Hundred Forty-One 94-100 dollars, and is made up as follows, to wit:

Rough Hemlock...................$978.88

Doors............................ 26.00

Glazed Windows................... 138.70-

Mouldings, inside trim, ceiling, etc.... 331.51

$1,475.09.”

The contract is set forth in the following terms: “The contract under which I claim is as follows to wit: verbal and written orders and orders by telephone, by H. O. Hanson, contractor, to whom the above material was sold, or by orders by his foreman.” No dates or amounts of the particular bills are furnished, nor does the notice contain any information as to the prices at which the material was furnished at any date. It shows that a part of the bill was contracted on written orders and these constitute the basis of the claim for a part, at least, of the account, and should be set forth. The notice states that there were also verbal orders and orders by telephone but it fails to show when or for what the verbal orders were given. In this respect the notice is quite unlike that set forth in Este v. R. R. Co., 27 Pa. Superior Ct. 521. In that case the notice contained a statement of the orders given by the contractors to the claimant specifying the kind and description of lumber ordered, also the receipts of the contractor for the various bills of lumber delivered and all of the orders were verbal. In the present case not only were some of the orders in writing but there is an entire absence of notice of the quality, quantity and price of the several bills of materials furnished. It is important to the owner to be advised of the nature and extent of the claimant's rights in order that he may protect himself in his settlements with the original contractor; hence, the statutory provision for notice to him. The notice given in this case does not set forth the contract within the meaning of the statute: McVey v. Kaufman, 223 Pa. 125; Collins v. Penna. R. R. Co., 29 Pa. Superior Ct. 547; and the lien was, therefore, properly stricken from the record.

The judgment is affirmed.