author: Rice, P. J.,

text:
    Commonwealth v. Drum, Appellant.

      Criminal law — Conspiracy—Defrauding bank — Ability to repay.

    1. Where on the trial of an indictment for conspiracy to obtain the money of a bank by deceptive and unlawful means, the evidence is sufficient to establish the guilt of the defendant, the latter’s ability to repay or even his intention to repay is immaterial.

      Evidence — Unsigned typewritten letter — Circumstantial evidence.

    2. Where the identity of an -unsigned typewritten letter is in question and it is alleged that the letter was written by the cashier of a bank, the jury may pass upon the identity of the writer by considering the postmark, the indorsement of the name of the bank on the envelope, the letter-head showing the name of the bank and its officers, together with the fact that the subject of the letter was one peculiarly within the cashier’s knowledge, and that he had a special motive for writing it.

      Argued Dec. 13, 1909.
    Appeal, No. 92, April T., 1910, by Frederick Ward, from judgment of Q. S. Washington Co., May T., 1909, No. 128, on verdict of guilty in case of Commonwealth v. C. H. Drum and Frederick Ward.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    ' Indictment for conspiracy. Before Taylor, J.
    At the trial A. B. Hay was asked this question:
    “ Q. Mr. Hay, you are a member of the Allegheny county bar? A. Yes, sir. Q. And have been for how many years? A. Forty-one years. Q. I believe you are at present county solicitor? A. Have been for three or four years, yes, sir. Q. Do you know Mr. Ward? A. I do, sir. Q. How long have you known him? A. To the best of my recollection about five or six years. Q. You are one of his counsel in this case? A. Yes, sir. Q. Have you been his personal counsel prior to this suit? A. I think I have been, in all matters while he was at home, for the last — I would say four or five years. Q. As counsel for Mr. Ward have you had knowledge in a general way of his business dealings? A. I think so. Q. Are you able to state from your knowledge as his counsel as to the extent of his business dealings, and whether he has been engaged in various enterprises? A. In quite a number-”■
    Objected to as incompetent and irrelevant, and purpose asked for.
    Mr. Irwin: It is preliminary to leading up to the question as to Mr. Ward’s financial ability.
    Mr. Underwood: We wish to have an offer made outside the hearing of the jury.
    The following offer, objection and ruling were made outside the hearing of the jury:
    The witness having stated that he was counsel for Mr. Ward and had been for a number of years, and in that way had learned of his business enterprises, the defendants’ counsel propose to inquire of the witness as to his knowledge of the business in which Mr. Ward has been engaged in various enterprises, and of properties in which he is interested now and has been for a number of years, and the extent of his interests and property holdings, for the purpose of showing Mr. Ward’s financial ability, to show that his credit was good and rested on substantial properties at the time he borrowed the money from the Coal Center Bank; and this in corroboration of the testimony already in the case as to the money having been loaned upon the good faith of Ward’s ability to repay the money.
    Objected to by the commonwealth for the reason it contains no offer to bring home knowledge to Drum of any ability that Ward might have to pay his loans; for the further reason that Ward’s ability to pay what he owes the bank is not the question at issue, but whether he obtained the money in a fraudulent and a corrupt manner; and it is further objected to by reason of the fact that it would put upon the commonwealth the necessity of proving what Mr. Ward’s indebtedness was and make this a long issue of finding out what he owned and what he owed.
    The Court: The question at issue in this case is whether there was an unlawful combination between the defendants to do an unlawful thing in itself or a lawful thing in an unlawful manner, and as we view it we cannot see how the financial ability of one of the alleged coconspirators to pay money obtained out of this bank as claimed in an unlawful manner through the cashier — how the financial standing of one of them meets any question raised by the issue, and particularly so when the defendant already called upon the stand admits that the said Ward, about whom it is proposed to inquire as to his financial standing, owes the Bank of Coal Center and has owed it for some considerable time upwards of $65,000, and that this evidence of indebtedness is by notes that were discounted at the bank in the name of third parties and which Ward is in no way legally bound to pay, as would appear by the paper itself; and for the further reason that one of the alleged coconspirators upon the stand has admitted on cross-examination that after $15,000 of the paper was ordered charged off by the banking department of the state and assumed by the directors and the resolution of the board of directors passed authorizing the cashier to accept no more paper from the said Ward in the manner heretofore discounted,' it was notice to the cashier that this paper was not regarded by the bank, with the securities offered, collateral pledged, as sufficient security for these loans, and that this practice must discontinue — that in the face of this, the said Drum, the said alleged coconspirator, admitted upon the stand upon cross-examination that he continued said practice and accepted notes signed in this way by third parties, on which Ward’s name did not appear and to which he could not legally be bound, and that the cashier accepted credits in this way to himself from this paper which he claimed the said Ward had owed him. So as the case stands on the undisputed testimony, we cannot see how the question of Mr. Ward’s ability to pay these notes, when it is shown that they are not paid, is material in the issue, it being a charge of conspiracy. With these admissions of the defendant Drum on the stand on his cross-examination, as to continuing the practice of taking this paper from third parties, crediting amounts to himself and Ward and lifting other notes discounted for them in the names of third parties, the charging of $15,000 of this paper off by order of the banking department of the state, and the assumption of this amount by the directors of the bank and the further continuance of this practice by Drum in the absence of a resolution of the board of directors, the offer on the question of the financial ability of one of the coconspirators is immaterial to this issue. This offer, this objection and this ruling of the court made at request of counsel in private, and the offer is overruled, the objection sustained and an exception noted for the defendants and a bill sealed for the defendants. [1]
    A. K. Young was asked these questions:
    “Q. In April, 1908, did you know Mr. G. S. Hornbake, Jr., cashier of the bank? A. I guess about that time. Q. Did you ever have any communications from Mr. Drum in regard to any of these notes that you had got the signatures to or in regard to any of the people that you had gotten to sign or indorse any of the notes? A. I received a letter from Mr. Drum pertaining to the men I had on the notes. Q. Do you remember when that was? A. I can’t give you the date.” ■
    (Letter and envelope marked exhibit “ W.”)
    “Q. Mr. Young, did anyone connected with the Bank of Coal Center know that you were getting these people to make or indorse notes other than C. H. Drum? A. I have no knowledge of them knowing it. Q. And did anyone in Pitts-burg know it except Mr. Ward and the men that you got to make or indorse the notes? A. I don’t believe they did. Q. I show you exhibit ‘W,’ Mr. Young, consisting of an envelope and a letter and ask you whether or not that is the communication you have testified to as having been received from Mr. Drum? A. That is the letter I received from— Q. Where did you get that, Mr. Young? A. At 612 Farmers’ Bank Building through the mail. Q. That is where your offices were at the time you received it? A. Yes, sir. Q. You received this through the mail? A. Yes, sir.”
    Mr. Acheson: If the court please, in connection with the testimony of Mr. Young, we wish to offer in evidence exhibit “ W,” consisting of an envelope and letter addressed to Mr. Young.
    Mr. Bane: The-offer is objected to for the reason that the paper or letter accompanying the envelope is not signed by any person, there is no proof of the writing, there is no proof that it was written by either of the defendants, and there is no proof that either of the defendants ever had any knowledge of its contents; and generally as irrelevant and immaterial.
    The Court: Wé think the letter is competent to be introduced in evidence in connection with what has preceded it, the evidence already in the case. The weight it is entitled to will be entirely for the jury, by reason of the letter being unsigned, and for them to say from the sheet of paper containing the note, and the contents, whether it relates to the transactions that are claimed by the commonwealth; and it is admitted with those remarks, and the objection is overruled and bill sealed for the defendants.

      Mr. Acheson: The envelope, marked at the top in the left-hand corner, “ In 5 days return to Bank of Coal Center, Coal Center, Pa.” The date is partially obliterated, — “April 20, 1908 — Pa.,” and on the back, “Pittsburg, Pa., Received, April 20, 4 p. m., 1908. A. K. Young, Esq., Care of Frederick W. Ward, Farmers’ Bank Building, Pittsburg, Pa.” “Bank of Coal Center, Coal Center, Pa. Capital $50,000. R. B. Drum, President. G. S. Hornbake, Sr., Vice President. W. H. Gregg, Sr., Vice President. C. H. Drum, Cashier, G. S. Hornbake, Jr., Assistant Cashier. Coal Center, Pa., April 20, 1908. A. K. Young, Esq., Care of Frederick W. Ward, Farmers’ Bank Building, Pittsburg, Pa. Dear Sir: Have all your men at Mr. Ward’s office on Friday of this week to meet a committee from this bank. Be sure and tell them they must say that the notes are theirs, for if they don’t they will get into a lot of trouble. I am depending on you to get this right and do not fail me. I will be in to see you before hand, but they must be there at two o’clock. Tell Lucas I want him to be there at that time but do not say what I want. Very truly yours.” [4]
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned were (1, 4) rulings on evidence, quoting the bill of exceptions.

      R. W. Irwin, with him A. B. Hay and James A. Wiley, for appellant.

      Owen C. Underwood, with him C. L. V. Acheson, district attorney, T. H. W. Ferguson, assistant district attorney, and R. H. Meloy, for appellee.
    March 3, 1910:
   Opinion by

Rice, P. J.,

The Bank of Coal Center, chartered under the laws of the state, began doing business in 1904, and closed its doors because of insolvency about September, 1908, at which time, according to the allegation .of the commonwealth, it had sustained a loss„of from $60,000 to $65,000 through the transactions (hereafter described) of the appellant and Drum, the cashier of the bank, who were codefendants in the case out of which this appeal arose. The indictment charged that the defendants conspired, by false pretenses, subtle means and devices and by unlawful means and unlawful acts, to obtain and acquire to themselves the money of the bank. The undisputed testimony is that in 1905 Ward opened an account in the bank; that he and Drum became interested in the Standard Car & Foundry Company, of which the former became president and the latter treasurer; that in January, 1908, pursuant to notice from the state bank department, if not by its express direction, an indebtedness of $15,000 based on notes of Ward and the Standard Car & Foundry Company was charged off the books of the bank, because not properly secured, and assumed by the bank directors personally; that notwithstanding this fact and in face of the resolution of the board of directors and notice to Drum that no more loans be made without their approval, Drum and Ward continued the practice of obtaining the money of the bank by means of notes signed by residents of Pittsburg who were not responsible, but who executed the notes at the request of either Ward or Drum, or someone employed by them to obtain such signatures. Many of these notes when renewed were renewed for larger amounts than the original notes and many of them were signed by the third parties in blank, and the amounts were filled in by Drum when they were presented at the bank. None of the third parties signing the notes had anything to do with the transactions, except simply to sign their names to the notes or the renewals thereof, and did not receive any of the proceeds; they were ¿aere tools of Ward and Drum. Those notes, or a majority of them, were in the bank and unpaid at the time it closed its doors, and represented a very large part of the $65,000 loss which brought the bank to insolvency. While Drum testified that Ward gave him an oral guaranty of the notes and that he believed him worth the amount, there was nothing on the face of the papers or the books of the bank to show that they represented an indebtedness of Ward or that he was primarily or secondarily liable for them. The following extracts from the testimony of Drum throw light on the transactions: “State, Mr. Drum, whether Mr. Ward discounted any paper at your bank upon which he did not appear either as maker or indorser? Yes, sir; he did. Why was that? I wanted to keep Mr. Ward’s credit down as low as possible, just like I like to keep anybody else’s credit down. And what other matter with reference to the regularity of lending to one man more than a certain sum? I didn’t want to loan vast amounts to one man.” Upon cross-examination he testified: “And after the board of directors had passed a resolution that no more loans be made without their approval, you continued to let Ward put in paper there? Yes, after that resolution things went on in the bank just the same, and passed them.” Again we quote from his cross-examination: “Mr. Drum, I understood you to say yesterday that the reason you had Mr. Ward put in the notes of other people instead of his own was to prevent the books showing that he was as large a borrower as he was, is that true? Yes, sir. That was the reason, was it? Yes, sir. You didn’t want the books? It is customary with all banks to do that where they think the borrower is entitled to more credit than the extent of the bank capital permits him to have; it is customary to do that every day in all our banks, — don’t know of one bank that don’t do it. If this indebtedness to the bank was $65,000, that was $15,000 more than the full capital stock of the bank? Yes, sir.” Further on in his cross-examination this testimony was given: “But did you not regard the passing of that resolution when you were present as notice to you that they didn’t want any more loans made unless they were submitted to them? Yes,sir; Ithinkso. And after that time you continued to make loans on paper which was furnished by Ward without submitting them to the directors? Yes, sir. And the directors, as a matter of fact, none of them, knew from anything you told them, who these men were whose notes were coming in after that, where Ward was really getting the money? No.” It is thus seen that while the methods adopted by Ward and Drum were not precisely the same as those alluded to in the opinion of our Brother Henderson in Com. v. Lenhart, 40 Pa. Superior Ct. 572, they were equally effective and as plainly intended to prevent the directors of the bank and the state banking department from acquiring information of the true condition of the bank’s business, and, particularly, information of the large amount of the bank’s money that went to Ward by connivance of Drum after the personal assumption by the directors of the $15,000 indebtedness in order to preserve the credit of the bank. That the methods were deceptive and unlawful can scarcely be disputed, and as was said in the case cited of the transactions of Lenhart and the cashier, so it may be said heré, it is not pretended that there was not an understanding and agreement on the part of Drum and the defendant to adopt the method used by the latter in obtaining the money and postponing payment thereof. The issue, as presented when the offer embraced in the first assignment was made, was whether the defendants had conspired to obtain the money of the bank by deceptive and unlawful means, not whether they had conspired to obtain the money of the bank beyond the ability of Ward to repay or without an intention on his part to repay it. The defendant’s offer to prove by his counsel “that his credit was good and rested on substantial properties at the time he borrowed the money from the Coal Center Bank” was not tantamount to an offer to prove his ability to repay the $65,000 and all his other indebtedness as well. But even if the offer had been broader and more explicit, there was no error in rejecting it, because the evidence would not have repelled the inference of any fact essential to his conviction of the conspiracy to obtain the money of the bank by deceptive and unlawful means. His ability to repay, or even his intention to repay, would not relieve him from answering the accusation which the commonwealth made: Com. v. Lenhart, supra.

Complaint is made in the fourth assignment of the admission of an unsigned typewritten letter to A. K. Young without sufficient preliminary proof, as. claimed by counsel for the appellant, that it came from Drum. Before the admission of this letter, Young had testified that at the request of Ward and Drum he had obtained the signatures, either as indorsers or makers, of persons financially irresponsible to many of the notes above referred to; that at the time he obtained them the notes were undated and the blank spaces for the amounts were not filled; that he either mailed or delivered them to Drum or delivered them to Ward to be delivered to Drum. He testified further that he told Ward he did not like to be running after these men all the time for renewals; that it was an embarrassing thing for him to do; that he thought these men ought to be taken care of in a way, by “a little supper or amusement of some kind or something similar to that;” and that Ward told him he would have to see Drum about that. Thereupon, he says, he wrote and mailed a letter to Drum dated April 7, 1908. This was admittedly received and reads as -follows: “I have promised to pay Messrs. Connell, Burnett and Davis the sum of ten dollars each for their signatures on the note I sent to you last evening. I promised to do this before seven o’clock this evening. Have also made arrangements to meet Maratta, McQuaide, Baker and Harris this evening to get their signatures. I can do nothing further in this matter unless I have the ammunition at hand.” He further testified that no one to his knowledge connected with the bank excepting Drum knew that he was getting these people to make or indorse notes. After this preliminary proof came the admission of the unsigned typewritten letter of April 20, 1908, referred to in the fourth assignment. The body reads as follows: “Coal Center, Pa., April 20, 1908. A. K. Young, Esq., Care of Frederick W. Ward, Farmers Bank Building, Pittsburg, Pa. Dear Sir: Have all your men at Mr. Ward’s office on Friday of this week to meet a committee from this bank. Be sure and tell them they must say that the notes are theirs; for if they don’t they will get into a lot of trouble. I am depending on you to get this right and do not fail me. I will be in to see you beforehand, but they must be there at two o’clock. Tell Lucas I want him to be there at that time but do not say what I want. Very truly yours.” There are several features of this letter important to be noticed. The envelope was post-marked at Coal Center, and in the upper left-hand corner were the printed words, “ In 5 days return to Bank of Coal Center, Coal Center, Pa.” The address on the envelope as well as at the head of the letter was, “A. K. Young, Esq., care of Frederick W. Ward, Farmers Bank Building, Pittsburg, Pa.” The letter was written on paper bearing the printed or engraved letter head of the Bank of Coal Center, which set forth the amount of its capital stock and the names of the officers of the bank, including that of “C. H. Drum, cashier.” It is also to be noticed that Drum admitted on cross-examination that a committee was appointed to go with him to Pittsburg to make investigation as to these notes. There being no testimony of any person that he saw Drum write or mail the letter or have it in his possession, or that Drum admitted to him that he wrote or mailed it or authorized it to be written or mailed, the commonwealth was necessarily compelled to rely on circumstantial evidence to show his connection with it. The postmark, the indorsement on the envelope and the letter head were circumstances tending in that direction. But as other persons had access to the stationery of the bank, they would not be conclusive, or even sufficient, standing alone, to sustain a finding that the letter came from Drum. But these circumstances do not stand alone. As shown by the foregoing recital of the evidence, the subject of the communication was one peculiarly within the knowledge of Drum, and he had a special motive, and, besides Ward, was the only person who had, to have the request of the communication carried out. Speaking of the subject of the contents of a written communication as evidence of authorship or responsibility for it, Professor Wigmore says: “But where the necessity above mentioned does in fact exist, namely, the impossibility of obtaining handwriting-testimony, it would seem to follow that resort must be had to the evidence from contents, — at any rate, in some circumstances or upon the facts of a particular case. Such an impossibility may exist for three sorts of writing, (a) an illiterate’s writing by amanuensis, (b) a type-written letter, (c) printed matter:” 3 Wigmore on Evidence, sec. 2148. He then quotes from the opinion of Nott, J., in Singleton v. Bremar, Harp., S. C., 201, 209: “The usual method of proving an instrument of writing, where there is no subscribing witness, is by proof of handwriting. But that could not be expected in this case, as the party cannot write. Even if her name had been subscribed to the letters, the difficulty would not have been lessened. Some other method must therefore be resorted to, and why may not the letters be looked into? If they furnish internal evidence of the source from whence they were derived, I can see no reason why we may not avail ourselves of that evidence. Thus, for instance, if they relate to facts which cannot be known to any other person, it will be presumed that they were written by her authority. If they embrace a number of facts which relate to her and her situation, and which cannot apply to any other person, each of those facts constitutes a link in the chain of circumstances which go to strengthen the presumption. In ordinary cases such evidence will not be allowed, because the writing is always presumed to be by the person by whom it purports to be written, and proof of the handwriting therefore is higher evidence. But in the present case the evidence offered was the best which the nature of the case could afford.” The author then proceeds as follows: “The case of an amanuensis, using a typewriting machine, presents a similar impossibility, whenever the signature (as sometimes happens) is also typewritten or stamped; and it would seem that a similar necessity justifies a resort to evidence from contents.” We of course do not say that the internal evidence is in all cases sufficient to carry the question to a jury, and it is doubtless true that there are some dangers of abuse from a resort to that kind of testimony, but there is also danger of abuse in the opposite direction; for the difficulty of authenticating such a document is sometimes taken advantage of by those who wish to be able to disavow their authorship. Each case must be judged by its special facts, and having regard to all of the extraneous circumstances to which we have alluded and the contents of the paper itself we are of opinion that the court committed no error in receiving it in evidence and submitting to the jury the question of Drum’s connection with it.

We have discussed the two principal assignments of error and we have also fully considered the able arguments of counsel upon the other assignments. As we view the case it is unnecessary to say more regarding them than that we discover no error in the instructions and rulings complained of which would'justify a reversal of the judgment.

The judgment is affirmed, and the record is remitted to the court of quarter sessions of Washington county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court and that he by that court committed to serve and comply with such part of his sentence as had not been performed at the time the appeal was made a supersedeas.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    C. Schmidt & Sons Brewing Company, Appellant, v. Philadelphia Rapid Transit Company.

      Appeals — Paper-books—Certificate of judge — Exception.
    An appeal will be quashed where the paper-book does not contain the judge’s certificate as to the evidence, or where it fails to show that an exception to the action of the court upon a motion for judgment non obstante veredicto was asked for or granted.
    Argued Dec. 14, 1909.
    Appeal, No. 23, Oct. T., 1909, by plaintiff, from judgment of O. P. No. 1, Phila. Co., June T., 1907, No. 5,934, for defendant non obstante veredicto in case of C. Schmidt & Sons Brewing Company v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Trespass to recover damages for injuries to an auto truck. Before Brégy, P. J.
    At the trial the jury returned a verdict for plaintiff for 1138.90. The court subsequently entered judgment for defendant non obstante veredicto.

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

      M. J. O’Callaghan, for appellant.

      Thomas Learning, with him Harold B. Beitler, for appellee.
    March 3, 1910:
   Per Curiam,

In this' appeal the matters assigned for error are, entering judgment in favor of the defendant non obstante veredicto under the act of 1905, and not entering judgment in plaintiff’s favor on the verdict.

When the case was called for argument, objection was raised by appellee’s counsel that the record was not in condition for disposition of the questions sought to be raised by the appellant. Our rules require that the transcript of the evidence shall be certified by the judge in a certain manner and that this certificate appear in the paper-book at the end of the • printed transcript. The latter rule has not been complied with. Whether the transcript was in fact certified by the judge is a matter which we cannot determine without having the record before us. Further, the record as printed fails to show that an exception to the action of the court upon the. motion for judgment non obstante veredicto was asked for or granted. This has been held to be essential, upon a full consideration of the terms of the act of 1905, relating to the subject. For the latter reason the appeal must be quashed: International Sav. & Tr. Co. v. Printz, 37 Pa. Superior Ct. 134.

The appeal is quashed.


author: Beaver, J.,

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

      Appeals — Certiorari—Habeas corpus — Parent and child — Custody of children.

    An appeal from an order in habeas corpus proceedings relating to the custody of a child, has only the effect of a certiorari, and the appellate court cannot, on such an appeal, consider either the evidence or the opinion of the court below. The record alone can be considered.
    Argued Dec. 17, 1909.
    Appeal, No. 223, Oct. T., 1909, by defendants, from order of Q. S. Phila. Co., Oct. T., 1909, No. 223, on habeas corpus proceedings in case of Commonwealth ex rel. Anna Moylan v. Howard Maurer and Catharine.Maurer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for habeas corpus. Before Staples, P. J., specially presiding.

      Errors assigned, were as follows:
    1. The learned court erred in receiving and considering the letter of the priest of the parish in which said Alice Moylan lived, he not being called as a witness.
    2. The learned court erred in receiving and considering the report of a probation officer of the court, said officer not being called as a witness.
    3. The learned court erred in refusing to permit the respondents to call their witnesses present in court on September 22, 1909, after granting leave to that effect when case was continued on September 20, 1909.

      G. Von Phul Jones, for appellants.

      William T. Connor, with him Harry J. Alker, Jr., J. Levering Jones and John R. K. Scoit, for appellee.
    March 3, 1910:
   Opinion by

Beaver, J.,

The first section of the Act of May 9, 1889, P. L. 158, provides, “That all appellate proceedings in the Supreme Court heretofore taken by writ of error, appeal or certiorari, shall hereafter be taken in a proceeding to be called an appeal.”

This provision of this act has received numerous interpretations, all of the same character. Rand v. King, 134 Pa. 641, is fairly representative of them, in which it is said, as contained in the first paragraph of the syllabus: “The modes of reviewing cases in the Supreme Court by writ of error, by appeal, and by writ of certiorari, which were in use prior to the Act of May 9, 1899, P. L. 158, still remain applicable in the same kinds of cases, within the same limits and with the same effect as before, the only difference made by that act being that now they are all called by the same name.” See also Shoe Co. v. Saupp, 7 Pa. Superior Ct. 480.

What, therefore, is the effect of an appeal from a decree of the lower court upon a writ of habeas corpus? We have very many decisions of both of our appellate courts upon this subject. One of the late cases very similar in its facts to the one before us is Com. ex rel. v. McDougall, 203 Pa. 291, in which Mr. Chief Justice Mitchell says: “Unfortunately there is no appeal in a case of habeas corpus, even for the custody of a child. This appeal, therefore, has only the effect of certiorari. If the legal questions discussed were before us, we might not be able to agree with the reasoning of the conclusion of the learned judge below, but as his opinion is not part of the record and only the record is before us, we express no opinion on that. The record being regular, the appeal must be dismissed.” To the same effect is Com. ex rel. v. Strickland, 27 Pa. Superior Ct. 309. Com. ex rel. v. Supt. of County Prison, 220 Pa. 401, although not involving the custody of children, is a case in which the Supreme Court reviews and affirms the decision of the Superior Court in Com. ex rel. v. Supt. of County Prison. 33 Pa. Superior Ct. 594, affirming the order of the court below, remanding the relator, Flower, to the custody from which he sought to be released. Mr. Justice Mestrezat, in the course of a thoroughly ex-_ haustive opinion upon the entire subject, decides in harmony with many preceding cases that, “An appeal from an order in extradition proceedings (habeas corpus) takes up only the record, and not the evidence. The fact that the judge of the quarter sessions granted a bill of exceptions, is immaterial since it is based on no statutory authority.”

Inasmuch as neither the evidence, which was not taken down at the hearing, nor the opinion of the court, which in this case is simply a resumé of the testimony as he recalls it, is properly before us, it is unnecessary for us to refer thereto. The record is entirely regular upon its face, shows a hearing and full deliberation which resulted in the decree, “And now, October 1st, 1909, after hearing and it appearing to the Court that the best interests of the child, Anna Moylan, will be best subserved by being placed in the custody of its mother, the natural guardian, the said respondents are hereby directed to take the child to its mother not later than October 4th, 1909.”

If we were permitted to consider the facts of the case, it would seem to us that, in addition to the prima facies that a mother is the proper person to have the custody of her child, the court below, after reaching a conclusion based upon the evidence, seemed to be only anxious to be absolutely certain that there could be no mistake as to the conclusion which he- had reached, and the extraordinary efforts made by the judge to fortify the conclusion would seem to have been in the interests of the respondents, or perhaps of the child, rather than the relator.

The record being regular upon its face, the decree of the court below is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Longstreth v. Gray, Appellant.

      Practice, C. P. — Pleading—Statement of claim — Promissory note— Averment as to name of defendant.

    In an action of assumpsit upon a promissory note, a statement of claim sets forth a sufficient cause of action wherein it is averred that the note was signed by John Gordon Gray without any averment that the John Gordon Gray who signed the note is John Gordon Gray, the defendant in the case.
    Argued Dec. 17, 1909.
    Appeal, No. 262, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 676, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Longstreth v. John Gordon Gray.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    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.

      Edmund W. Kirby, with him Robert J. Byron, for appellant.
    — Under the procedure Act of May 25, 1887, P. L. 271, the declaration is required to be not only concise, but a precise statement of the plaintiff’s demand, e:xhibiting with accuracy and completeness the ground on which recovery is sought: Clark v. Lindsay, 7 Pa. Superior Ct. 43; Monsarratt v. Trust Co., 14 Pa. Superior Ct. 541; Fritz v. Hathaway, 135 Pa. 274; Bank v. Ellis, 161 Pa. 241.

      Thomas B. Williams, with him Joseph T. Bunting, for appellee.
    — The John Gordon Gray named in plaintiff’s statement is prima facie the John Gordon Gray who was sued: McConeghy v. Kirk, 68 Pa. 200; Hamsher v. Kline, 57 Pa. 397; Wallace v. McElevy, 2 Grant, 44; Burns v. Hyatt, 1 Clark, 323; Mink v. Shaffer, 124 Pa. 280; Shaw v. Merrill, 16 Pa. Dist. Rep. 708.
    March 3, 1910:
   Per Curiam,

This appeal is without merit. The action was assumpsit against John Gordon Gray. The statement averred, with precision as to details of time and place, that John Gordon Gray made and delivered to Charles A. Longstreth, the plaintiff, a promissory note, a copy of which is set forth at length; that certain payments had been made upon the note; and that a balance, specifying it, was justly due and remained unpaid, “although demand has been made by the plaintiff upon the said John Gordon Gray for the payment of the same since the same became due.”

The statement in the defendant’s affidavit, that he was advised by counsel that the statement of claim did not set forth any cause of action against him and therefore it was not necessary for him to make any defense to the averments of facts set forth in the statement, contained no intimation, that the statement was defective in not averring that the defendant is the John Gordon Gray who signed and delivered the note. In the absence of such suggestion, or of a denial of the fact, the court was warranted upon rule for judgment for want of an affidavit of defense in implying from the identity of name and the reference in the quoted averment to the “said John Gordon Gray,” that the defendant was the identical person who signed the note sued upon. See McConeghy v. Kirk, 68 Pa. 200; Mink v. Shaffer, 124 Pa. 280.

The judgment is affirmed.


text:
    Young v. Miller & Miller Lumber Company, Appellant.

      Contract — Sale—Affidavit of defense — Premature suit.

    1. In an action for goods sold and delivered an affidavit of defense is insufficient which avers that the suit was prematurely brought before the expiration of three months from the date of sale, that the goods were purchased upon an order containing the words “Terms usual,” and that these words meant in the transaction, three months’ credit.
    2. In such a ease the averment as to the meaning of words “Terms usual” should be specific as to the facts. If the meaning given by the affidavit had been acquired by a course of dealing between the parties, or if it was a meaning which had grown out of local usage, these facts ought to be set forth.
    Argued Dec. 18, 1909.
    Appeal, No. 249, Oct. T., 1909, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1909, No. 4,264, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Walter D. Young, trading as W. D. Young & Co., v. Miller & Miller Lumber Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Tbe facts appear by the opinion of the Superior Court.

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

      Sidney E. Smith, for appellant.

      Harry M. McCaughey, with him William S. Furst, for appellee.
    March 3, 1910:
   Per Curiam,

This action of assumpsit was brought on August 7, 1909, to recover a certain sum alleged to be due, with interest thereon from August 28, 1909, on book account for lumber sold and delivered. It is shown by the copy of the book account attached to the statement of claim that the lumber was delivered on May 27 and 28, 1909, and this is not denied in the affidavit of defense. One of the defenses set up is that the action was prematurely brought.

No certain inference that the debt was not due at the time of suit brought arises from the fact that interest was claimed from a subsequent date, and as the amount for which the court entered judgment did not include interest, the decision of the appeal turns on the following clause of the affidavit of defense: “Defendant avers that the suit herein instituted was prematurely brought, and denies that upon the date which such suit was instituted any sum was due the plaintiff, but avers that the sale of this lumber was made upon three months’ time, which was the meaning of the words 'usual terms’ contained in defendant’s order upon which these- goods were shipped, and avers that payment was only due three months after the order, to wit, August 28, 1909.”

It will be noticed that there is no clear and distinct averment of an agreement for three months’ credit, apart from that which is supposed to be implied from the admitted fact, that the lumber was shipped upon a written order containing the words “Terms — Usual” and the alleged fact that the words mean three months’ credit. Obviously this is not the ordinary meaning of the words. If it was a meaning which they had acquired by a course of dealing between the parties to the action, or by local usage in the trade to which the transaction belonged, these facts ought to have been set forth. As the case stands, the averment amounts to no more than the defendant’s assertion of its conclusion that the words had a meaning in this transaction different from their ordinary meaning without averring the special facts from which that conclusion arose. One of the well-settled rules is that an affidavit of defense should contain a clear, orderly, and specific statement of the facts relied on to prevent judgment; argumentative or merely general averments which raise mixed questions of law and fact are insufficient. Inferences or conclusions of law are for the court, and if it is desired that they should be drawn in favor of the defendant, the court-should be put in possession of the facts from which' they are drawn. We are of opinion that the affidavit of defense in the particular under consideration does not come up to this well-established standard.

The judgment is affirmed.


author: Henderson, J.,

text:
    Ewing v. Musser, Appellant.

      Contract — Sale—Passing of title — Payment—Trover—Conversion.
    1. Where a sale of chattels is made without any expressed agreement as to the time of payment the presumption is that the parties dealt on a cash basis and no title passes to the vendee until the price has been paid, unless there has been an actual delivery without payment. And even where there has been a delivery, if such delivery is madé with the belief that payment is to be made at once and the vendee fails to p.ay, the vendor may reclaim his property if he take immediate steps so to do.
    2. Where cattle are sent to a distant point on a telegraphic order, directing the seller to draw on the buyer for the price, and nothing further is said about payment, and when the cattle arrive at their destination they are sold at the stock yards by the agent of the purchaser in the latter’s absence, and without his knowledge or the knowledge of the seller, and in accordance with an alleged custom of the yard of which the seller had no notice, the agent cannot retain the purchase money of the cattle, if it appears that the seller promptly drew upon the agent for the money, and that the draft was dishonored. In such a case the act of the agent constituted a conversion of the cattle for which he would be liable to the seller in an action of trespass.
    Argued Nov. 11, 1909.
    Appeal, No. 187, Oct. T., 1909, by defendant, from judgment of 0. P. Lancaster Co., Aug. T., 1908, No. 89, on verdict for plaintiff in case of James T. Ewing, doing business under the firm name of James T. Ewing & Company, v. F. C. Musser.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass for conversion. Before Hassler, J.
    From the record it appeared that on June 1,1908, the plaintiff received a telegram, at his home or place of business, in Kansas City, Mo., from EL K. Alwine, of which the following is a copy: “Ship me Tuesday two loads heifers Lancaster care Musser average eight fifty draw Middletown,” to which the plaintiff replied by telegram, “Message received market higher your kind cost about four seventy-five answer.” On June 3, 1908, he received the answer, “Fill order to-morrow on market.” The Musser referred to in the first telegram is F. C. Musser, the defendant. The words “Draw Middle-town” used in the first telegram mean, draw on H. K. Alwine at Middletown, Pa., for the price of the cattle. In pursuance of these telegrams the plaintiff, on June 4, 1908, shipped a car load of heifers as directed, receiving from the railroad company a receipt and bill of lading. He attached the bill of lading to a draft upon Alwine at Middletown for the price of the heifers, and deposited it in a bank at Kansas City, Mo., for collection. The heifers reached Lancaster, Pa., on June 7, 1908, and were taken possession of by the defendant, who subsequently sold them for $1,100.11, which amount he now has in his possession. It is the custom of the stock yards at which F. C. Musser did business for the person in whose care cattle are shipped to sell them, as soon as can be done advantageously, after their receipt. The draft was not paid and duly protested, and returned with the bill of lading to the plaintiff. The plaintiff prior to this transaction had shipped other car loads of cattle to H. K. Alwine, care of the defendant, and attached a bill of lading to the draft, sent them in due course of business, and all of such drafts were paid. The plaintiff contended that this was a sale to H. K. Alwine for cash, and that the title of the cattle did not pass until their price was paid.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $1,100.11. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      John E. Malone, with him J. Boland Kinzer, for appellant.
    — The case of Greaner v. Mullen, 15 Pa. 200, is almost identical with the present case. Though the terms of a sale be cash, a subsequent delivery, without payment, passes the property to the vendee, not only as against all the rest of mankind but against the vendor himself: Bowen v. Burk, 13 Pa. 146; Harris v. Smith, 3 S. & R. 20; Welsh v. Bell, 32 Pa. 12; Backentoss v. Speicher, 31 Pa. 324.
    Appellee never had any interest in any specific money, coin or bank bills, which appellant converted, nor does the statement in this case allege the conversion of .any specific money, nor does it attempt to identify the same: Westgate v. Weidman, 8 Del. Co. Rep. 460; Life Assn. of America v. Catlin, 37 Leg. Int. 52.

      W. H. Keller, of Coyle & Keller, with him M. C. Schaeffer, for appellee.
    — The sale was a cash sale: Hand v. Matthews, 208 Pa. 149; Welsh v. Bell, 32 Pa. 12; Frech v. Lewis, 218 Pa. 141.
    If one sell goods for cash and the vendee takes them away without payment of the money, the vendor should immediately reclaim them by pursuing the party and retaking them, and this may be done when necessary, even by force: Bowen v. Burk, 13 Pa. 146; Holmes, Lafferty & Co. v. Bank, 87 Pa. 525.
    Trespass was the proper action: Trout v. Kennedy, 47 Pa. 387; Alexander & Co. v. Goldstein, 13 Pa. Superior Ct. 523; Stegmaier v. Keystone Coal Co., 225 Pa. 221; Conn v. Hunsberger, 224 Pa. 154.
    March 3, 1910:
   Opinion by

Henderson, J.,

The appellant contends for two propositions: (1) that there was a delivery of the cattle to the purchaser as a result of which the title passed to him free from lien for the purchase money, and (2) that the sale of the cattle .by the defendant at the stock yards in accordance with a local custom converted the property into money and that an action of trespass in the nature of trover cannot be sustained. That the negotiation between Alwine and the plaintiff contemplated a cash payment can hardly be doubted. The telegraphic order for the stock directed the plaintiff to draw on the purchaser for the price. Nothing was said in the correspondence about any other terms, and former dealings between them in a few sales had been cash transactions. Where a sale of chattels is made without any expressed agreement as to the time of payment the presumption is that the parties dealt on a cash basis and no title passes to the vendee until the price has been paid, unless there has been an actual delivery without payment: Welsh v. Bell, 32 Pa. 12; Hand v. Matthews, 208 Pa. 149; Frech v. Lewis, 218 Pa. 141. And even where there has been a delivery, if such delivery is made with the belief that payment is to be made at once and the vendee fails to pay, the vendor may reclaim his property if he take immediate steps so to do: Woolsey v. Axton, 192 Pa. 526; Frech v. Lewis, 218 Pa. 141. The presumption arising from the absence of evidence of any arrangement for credit and the testimony showing that the bill of lading was attached by the plaintiff to the draft against Alwine and forwarded for collection close the door against the argument that the plaintiff’s contract of sale was not on a cash basis. The consignment was to Alwine in care of the defendant who was a live stock dealer at Lancaster. Before the cattle or the draft arrived Alwine absconded and, so far as appears in the case, never knew whether the cattle arrived or not. The defendant sold the cattle without instructions either from the plaintiff or Alwine, in accordance, as he explained, with a local usage of the yards at Lancaster that all cattle consigned to the care of dealers are sold as soon as can be advantageously done. There is no evidence, however, that the plaintiff knew of any such usage or that Alwine intended this shipment of cattle for sale at the stock yards. On the day of the sale the defendant wrote to the plaintiff: “We had a load of heifers to-day billed from J. T. Ewing, Kansas City,'to H.. W. Alwine, care F. C. Musser. We sold them for five sixty-nine per hundred and net amount realized is $1,100.11. Were they your cattle, and if so, let me know, and if you made draft, and we will mail you remittance. F. C. Musser.” To this letter the plaintiff answered by telegraph: “Cattle billed Alwine made draft Middletown.” The defendant apparently supposed that the plaintiff was the owner of the cattle and he recognized the plaintiff’s title to the money arising from the sale if a draft was drawn. The plaintiff was led by this letter to believe that the defendant would remit to him the money into which he had converted the cattle, but not having received it he drew on the defendant on June 27. We do not find anything in the case to indicate that the plaintiff was remiss in asserting his title as soon as he learned that his draft was protested. His remoteness from the place to which the cattle were consigned necessarily delayed his efforts to recover his property. But we would not be justified in declaring him in default in this respect. If we assume that delivery to Musser was a delivery to Alwine and that Musser could rightfully sell the cattle without instructions or knowledge that Alwine desired.to have them sold it became his duty when informed of the situation to pay the money to the plaintiff and his refusal so to do amounted to a conversion. The custom in existence at the stock yards according to which the sale was made could have no effect in changing the title or investing the defendant with any right which Alwine would not have had if he had been present. The action of trover is based on the right of possession of the plaintiff against the defendant. The plaintiff must show property in himself and an unlawful conversion by the defendant. If, then, the plaintiff could have reclaimed his property when he discovered that his draft was protested neither Alwine nor Musser could convert the property and refuse to deliver up the price. Such refusal would relate back to the sale and would make the act a wrongful conversion of the cattle. The case of Alexander & Co. v. Goldstein, 13 Pa. Superior Ct. 523, is an authority supporting the form of action. On both of the questions submitted we think the case is with the plaintiff.

The judgment is, therefore, affirmed.


text:
    Robb, Appellant, v. Zern.

      Contract — Sale—Delivery—Payment of price — Title.
    Where a person sells three cows and three calves for $113 and receives $3.00 at the time of the sale, and the purchaser directs the seller to keep the cows until he is notified to deliver them at a place designated, and the understanding :is that the balance of the purchase money is to be paid upon the delivery of the cows, the title to the cows does not pass until delivery, and if one of the cows dies in the meantime, the loss is that of the seller and not of the purchaser.
    Argued Oct. 28, 1909.
    Appeal, No. 65, Oct. T., 1909, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1908, No. 30, for defendant non obstante veredicto in case of M. R. Robb v. D. S. Zern.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace. Before Woods, P. J.
    The opinion of the Superior Court states the case.
    At the trial by direction of the court, the jury returned a verdict for plaintiff for $32.00. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed.

      Error assigned was in entering judgment for plaintiff n. o. v.

      L. H. Beers, for appellant.

      If. H. Waite, for appellee.
    March 3, 1910:
   Opinion by

Beaver, J.,

The action here was originally brought before a justice of the peace for the purchase price of a cow which the plaintiff had agreed to sell to the defendant in connection with two other cows and three calves. The plaintiff's was the only testimony relating to the terms and conditions of the sale. The material facts, as detailed by the plaintiff in his examination and cross-examination, were about as follows: “Q. Did you sell some cows, and, if so, how many, to the defendant here — D. S. Zern? A. Yes, sir; three cows. . . . Q. What year? A. 1908. . . . Q. What was the character of those cows you sold him? A. Three fresh cows. Q. Had they calves? A. All had calves; yes, sir; they all had calves by their sides. Q. What was the price agreed upon that he was to pay you? A. For the three cows, $113. . . . Q. Did he pay you anything at that time on this contract? A. He paid me $3.00. Q. What arrangement, if any, did you make about keeping the cattle? A. He had not his car load bought yet and he asked me to keep them until he sent me word, and then send them to Knode’s. He told me to take good care of them before he left, the same as if they were my own cattle. . . . Q. What happened to one of these cows? A. I could not tell; it died very unexpectedly; nothing seemed to be the matter with the cow until it got sick and died. . . . Q. After that did you deliver the other two cows? A. Yes, sir, and the three calves.' Q. Do you remember the date of the death of the cow that died; that is, how long before you delivered them? A. It died on the third of June, if I remember. I think that is the date. Q. So it was impossible for you to deliver that cow? A. Yes, sir. Q. And you delivered the two living ones and the three calves? A. Yes, sir. Q. When you did that, how much additional were you paid, if anything; when you delivered the two cows and the three calves, what were you paid? A. Seventy-seven dollars. Q. Seventy-seven dollars additional; then you got how many dollars in all? A. He wrote me in the letter he would pay me $77.00 that day, but I think — -Q. And how much did he pay you before? A. He said he would pay me $77.00 in the letter, but I think that the check was $78.00, if I remember right.” On cross-examination, the plaintiff stated: “ Q. Mr. Robb, can you give us the prices fixed by you upon each one of those fresh cows which you said you sold to Mr. Zern? A. I do not know as I can; I had my price on them, but they were sold as a whole. He states the prices in that letter. Q. How much? A. One hundred and thirteen dollars for the three cows. Q. Was not the price of this cow that died $32.00? A. No, I think not. . . . Q. You had a fixed price on each one, had you not? A. Yes, sir. Q. The sum total of the price fixed by you on the three cows aggregated $113? A. Yes, sir. . . . Q. Now, Mr. Robb, you were to deliver these three cows, when notified to do so, by Mr. Zern over at Knode’s, were you not? A. I was to take them to Knode’s when he notified me. Q. And at that time he was to pay you the balance of the money on the cows, was he not? A. I was to receive the balance of the money, yes, sir.”

Did the title to the cows and their calves pass at the time of the contract of sale? What were the terms of sale? Was there any intention that the terms should be other than cash upon delivery?

The general principles governing the necessity for delivery, as between the parties, are well stated in 18 P. & L. Dig. of Dec. 32,054: “As between vendor and vendee, title to personal property may pass under the contract of sale without actual delivery, and before the time for delivery, if such be the intention of the parties; but, on the other hand, the fact that there has been no delivery may be considered as strong or even conclusive evidence that the sale remained executory and the contract itself may provide for delivery as a condition precedent to the vesting of title.”

After the agreement of sale between the plaintiff and the defendant, two things were to be done, in order to make the transaction complete. One was the delivery at Knode’s, the other was the payment of the purchase price. In Welsh v. Bell, 32 Pa. 12, where there had been, as here, a payment of a portion of the purchase money on account of bark sold by the plaintiff below to one Kestner, which was subsequently levied upon by the sheriff as Kestner’s property, and Bell brought suit against the sheriff to recover damages for the property levied upon which was carried away, Mr. Justice Strong in his opinion says: “The property was either wholly in Kestner, or none of it. The contract having been to sell for cash, payment of the whole price was a necessary requisite to a change of the ownership, so long as the possession remained in the vendor.”

The price of the three cows and their calves in the case under consideration seems to have been a round sum. The delivery was to take place at Knode’s, when the purchase money was to be paid. It can hardly be claimed that, if the sheriff had levied upon the cows and their calves as the property of Zern, the defendant, they could have been sold, so as to pass the legal title thereto to the purchaser, until the purchase money was paid. The title was wholly in Zern when the small payment on account of the purchase was made, or he had no title.

In Hand v. Matthews, 208 Pa. 149, in which the court below had granted a nonsuit, after rejecting the plaintiff’s offer of testimony, Mr. Justice Potter states the whole question, which seems to have some applicability here, as follows: “The question raised by this appeal is, therefore, whether the facts contained in plaintiff’s offer of testimony would, if established, have entitled'them to possession of the goods replevied. It is contended that the title and right of possession of the goods became vested in the plaintiffs when they paid $500 on account of the purchase money and received a receipt from the auctioneer. The offer does not set forth the terms and conditions of the sale, nor the terms of the receipt. But in the absence of a special provision or understanding to the contrary, a cash sale is generally presumed to have been contemplated: 24 Am. & Eng. Ency. of Law (2d ed.), 1095. 'An absolute payment in cash .... is always implied when nothing is said:’Benjamin on Sales, sec. 706. In Welsh v. Bell, 32 Pa. 12, Mr. Justice Strong said (p. 17): 'No agreement having been made for a credit, it was, of course, a contract for a cash sale, and without actual delivery the property would not pass to the vendee until payment of the consideration.’ ”

In our own case of Brown v. Reber, 30 Pa. Superior Ct. 114, a horse was sold at auction under the terms upon which the sale was made and possession retained until the conditions were complied with. Delay having occurred, the horse died in the meantime and it was held by us that the title to the property was in the seller and the loss must rest upon him. The facts are somewhat different from those in the present case and the conclusion for that reason not entirely applicable, but our Pennsylvania cases are very carefully collected by our Brother Morrison in his opinion in that case, some of which are herein cited, and it seems to us that we keep more safely within the principles laid down, particularly in the cases of Welsh v. Bell, 32 Pa. 12, and Hand v. Matthews, 208 Pa. 149, by holding, as the court below held, that no terms for payment having been provided at the time of the agreement of sale and a delivery and payment being coincident, as testified by the plaintiff, the title did not pass until the delivery at Knode’s, when the purchase money was paid, and that, therefore, the plaintiff could legally claim the purchase price only for what he delivered.

We do not overlook the testimony of the plaintiff, in which he said, in reply to the question, “What arrangement, if any, did you make about keeping the cattle? A. He had not his car load bought yet and he asked me to keep them, until he sent me word and then send them to Knode’s. He told me to take good care of. them before he left, the same as if they were my own cattle.” Coupled as this is with the directions as to delivery and the other testimony of the plaintiff as to the delivery and payment, we cannot see that the jury could be allowed to infer that it was the intention of the parties to have the title pass at the time of the original contract. It would permit an inference by a jury to overturn the well-settled principles established by the courts of England and America' governing transactions of this character.

A letter offered in evidence by the plaintiff, written by the defendant to the plaintiff, relating to the delivery and the price, is not printed in the plaintiff’s paper-book, but, so far as we are able to judge of its materiality, we do not think the failure to print it affects the case one way or the other.

We can see nothing in the case from which a jury could be allowed to infer the transfer of the title to the property to the purchaser at the time of the sale and are, therefore, of the opinion that the court below, having directed a verdict for the plaintiff at the trial, properly entered judgment non obstante veredicto upon the whole case as presented, as it would have been justified in doing at the trial.

Judgment affirmed.


author: Orlady, J.,

text:
    Pennsylvania Railroad Company, Appellant, v. Bulah Shaft Coal Company.

      Railroads — Carriers—Detention of cars — Demurrage.
    1. A carrier by rail may establish a rule fixing a reasonable rate for the detention of cars after a sufficient period for unloading, without specific notice to the shippers or-consignee.

      A ppeals — Paper-book—Printing evidence.

    2. On an appeal by plaintiff, a railroad company, from a judgment on a verdict for defendant, a coal company, where the suit is for a claim for demurrage of cars, and the case turns upon the construction of the rules of the Interstate Commerce Commission, the appellate court will not pass upon the question involved, if it appears that the rules of the Interstate Commerce Commission relating to the controversy, are not printed in the paper-book.
    Argued Oct. 29, 1909.
    Appeal, No. 137, Oct. T., 1909, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1908, No. 239, on verdict for defendant in case of Pennsylvania Railroad Company v. Bulah Shaft Coal Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace. Before Smith, J.
    The opinion of the Superior Court states the case.

      Errors assigned were various instructions.

      Hazard, Alex. Murray, with him Thos. H. Murray and James P. O’Laughlin, for appellant.

      James A. Gleason, with him W. H. Patterson, for appellee.
    March 3, 1910:
   Opinion by

Orlady, J.,

A railroad company has an unquestioned right as a common carrier to make reasonable rules in order to speed the unloading of its cars, as these are for transportation of freight and not for its storage, nor is there any duty on a common carrier to consult either its shippers or consignees as to the wisdom of its rates of freight for carrying, or of its rules for demurrage; as to the one, it cannot exceed a lawful rate, as to the other, it cannot exceed a reasonable charge. Within these bounds it is presumed properly to conduct its own business in the interest of its stockholders and of the public: Railroad Company v. Midvale Steel Company, 201 Pa. 624; Yazoo & Mississippi Valley R. R. Co. v. Searles, 68 L. R. A. 715. A carrier by rail may establish a rule fixing a reasonable rate for the detention of cars after a sufficient period for unloading, without specific notice to the shippers or consignees: Baltimore & Ohio R. R. Co. v. Abattoir Co., 27 Pa. Superior Ct. 511.

The plaintiff recovered a judgment before a justice of the peace, on a claim for “demurrage, unloading; and storage of a carload of rails with interest from December 1, 1907, $1.62, demand $82.72.” The defendant brought his appeal into the common pleas, and the case proceeded to trial with the transcript of the justice as a statement of claim.

About the middle of July the defendant ordered from the Carnegie Steel Company, a carload of steel rails, which were shipped from Bessemer, Penna., to Ramey, Penna., and were consigned to the Carnegie Steel Company with directions to notify the Bulah Shaft Coal Company. They were received at Ramey station, July 27, and it is admitted that the demurrage charge should not have started until July 31, and that it was at the rate of $1.00 per day, Sundays and holidays excluded.

On August 6 or 7, the superintendent of the defendant company surrendered the bill of lading to the plaintiff’s agent, who said, “There should be about $9.00 demurrage charge on this,” and demanded the payment of that amount of money. This was refused, the reason given being that the claim was unjust and unreasonable, and even if for a proper amount, it should be paid by the Carnegie Steel Company as consignees.

On August 7, the defendant’s superintendent notified the division superintendent of the plaintiff company of the demand of $9.00 for demurrage and protested against it being exacted of him, to which he received a reply from the division superintendent, approving the action of the local freight agent, because “he is obliged to be governed by the rules which in this instance are regulated by the Interstate Commerce Act.” Several letters were exchanged between the parties without accomplishing any result, the defendant denying his liability and that it was an unfair construction of the rules of the Interstate Commerce Commission and that the charge was unjust and unreasonable in amount.

The claim as made out by the plaintiff as we gather it from the evidence, was a demurrage charge for forty-eight days at the rate of $1.00 per day, charge for unloading the rails, $4.60, one hour engine service, $2.50, and for car service charges $26.00, aggregating $81.10, to which is added interest from December 1, 1907.

On September 4, the railroad company unloaded the freight from the car to the ground at the side of the track, after which time that car was subject to active service. The charge of $1.00 per day was continued as a storage charge until November 4, when the rails were removed by the defendant. The plaintiff’s authority to charge for this demurrage is founded upon the tariff rate and charges issued by the Interstate Commerce Commission, which were produced by the plaintiff and offered in evidence, but no part of them is supplied in the appellant’s paper-book, and without them we are unable to decide the very question brought before us for review. Whether the rate charged for demurrage, storage, car service and labor, is just and reasonable and in accordance with the rules of the Interstate Commerce Commission, cannot be considered for the reason that these rules are not printed in the record. The plaintiff presented no prayers for special instructions, and failed to invite the attention of the learned trial judge to the points of the case, now claimed to have been insufficiently treated. He did present a motion for judgment non obstante veredicto, which was overruled for the reason that no rule or order of the plaintiff company was offered in evidence which would entitle the plaintiff to recover demurrage in any amount; moreover, the time when demurrage commenced was not clearly settled by any testimony, and binding instructions would have been improper even if a request therefor had been made at the trial. It is required by our rules that the evidence introduced on the trial should not only be brought up with the record, but printed in the paper-book of the appellant, and it is so obviously essential to a decision of the question raised in this case, that we cannot act without it.

The judgment is affirmed.


author: Head, J.,

text:
    Hildebrant, Appellant, v. Hildebrant.

      Will — Construction—Intestacy—Intention.
    1. A direction by a testator in his will that on the happening of a certain contingency his property should “be divided among my relatives under the intestate laws of Pennsylvania,” is a testamentary disposition, and in no wise weakens the conclusion always favored by the law that a will should be construed as if the intention of the testator were to dispose of his entire estate, unless the contrary intention plainly appears from the language of the will itself.
    2. A gift of the net rents, issues and profits and income of all testator’s estate to testator’s wife for her natural life “less thirty dollars payable every three months during my wife’s lifetime to my son,” without any limitation over after the death of the son, creates a vested legacy in the son on the death of the testator, and upon the death of the son the quarterly payments go to the personal representative until the death of the widow. In such a case the fact that the annuity to the son is protected by a spendthrift trust does not call for a different construction of the will.
    Argued Nov. 9, 1909.
    Appeal, No. 5, Oct. T., 1909, by plaintiff, from decree of O. C. Lancaster Co., April T., 1903, No. 87, to pay over money in case of Amanda Hildebrant v. Mary M. Hildebrant.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition to pay over money.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the following decree:
    It is now ordered that Barr Spangler and William H. Hildebrant, executors of the will of Martin Hildebrant, deceased, pay to Mary M. Hildebrant, administratrix of the estate of Harry K. Hildebrant, deceased, $30.00 quarterly from April 1, 1908, and continue so to pay as long as Amanda Hildebrant, the widow of Martin Hildebrant, shall live.

      W. U. Hernel, with'him John A. Nauman, for appellant.—
    The administration of a spendthrift trust imposes active duties upon the trustee and requires a separation of the legal and equitable estates, so that the legal estate will not vest in the beneficiary: Still v. Spear, 45 Pa. 168; Rife v. Geyer, 59 Pa. 393; Horwitz v. Norris, 49 Pa. 213.
    Upon the death of Harry Hildebrant, the very purpose for which the trust was created ceased, and the directions to the executors to pay over to him $30.00 quarterly was executed. This was not a trust to preserve any money for the benefit of his estate, or for the benefit of his creditors. In fact, there was an express prohibition that none of this money should be liable for any debts that he might create. To permit the estate of Harry Hildebrant now to continue to draw after his death the $30.00 quarterly, would be to practically nullify the purposes for which the spendthrift trust was created, and if the court were to decide in favor of that position, the law relating to spendthrift trusts would be entirely overruled.

      F. S. Groff, for appellee.
    — The language creates a vested estate in Harry K. Hildebrant during the lifetime of his mother, the wife of Martin K. Hildebrant, in all the payments that may accrue, and upon his death, the unpaid installments falling due during her lifetime must be paid to his administratrix: Little’s App., 81 Pa. 190; Ritter’s App., 190 Pa. 102.
    The gift of a legacy under the form of a direction to pay at a future time or upon a future event, is not less favorable to vesting than a simple and direct bequest of a legacy at a like future time or upon a like event: McClure’s App., 72 Pa. 414.
    March 3, 1910:
   Opinion by

Head, J.,

An examination of the will we are required to construe clearly enough discloses that the testator intended to make a testamentary disposition of his entire estate. It is true that upon the happening of the contingency, apparently most remote in his view, his property was “to be divided among my [his] relatives under the intestate laws of Pennsylvania;” but this was none the less a testamentary disposition of his property, and in nowise weakens the conclusion always favored by the law that a will should be construed as if the intention of the testator were to dispose of his entire estate unless the contrary intention plainly appears from the language of the will itself.

Aside from a few minor bequests not involved in this case, the testator gave to his wife Amanda “the net rents, issues, income and profits of all my estate, real, personal and mixed, for her natural life .... less Thirty Dollars every three months payable as hereinafter; .... during my wife’s lifetime my executors shall pay my son Harry Thirty Dollars every three months.” The will contains no line or letter that would be effective to change by increase or diminution the fixed and determinate provision thus made for the widow which was to continue during her natural life; and as she still happily survives, we have no concern with those portions of the will intended to become operative only after her death.

The son of the testator, however, already mentioned, to whom he gave the legacy of $30.00 every three months during the natural life of the widow has died, leaving to survive him a widow but no issue. His widow, after his death, filed her petition in the orphans’ court praying for an order on the executors of the will of Martin Hildebrant, deceased, to continue to pay to her the sum of $30.00 every three months during the remainder of the natural life of the widow of the testator. The executors filed an answer setting up that, under the terms of said will, the said Harry Hildebrant had no vested legacy, and that with his death no right remained to his widow, who was also his administratrix, to have said payments continue. The learned orphans’ court, holding that the legacy to the said Harry Hildebrant vested on the death of the testator, and that under the terms of his will it was to continue during the natural life of his widow, made the decree prayed for. From this decree Amanda Hildebrant, the widow of the testator, appeals.

As we have already stated, there is not in our opinion any provision of the testator’s will under which his widow may claim, as his legatee, to have this portion of his estate, because by the very terms of the will it was carved out and set apart from that which was intended for her. -As the court below well says, “From the general bequest to her he slices off an interest which he gave to his son during the life of his wife. It is clear, therefore, that under no circumstances did he intend his wife to enjoy that which was given away for as long a time, as she remained alive. The giving of it to another for her life negatives any intention'of having her receive it. If for her life it is for another, then during her life it is not for her.” If, then, her only possible interest in this sum was as legatee under the will of her husband, this appeal could be dismissed on the ground that she had no interest in maintaining it. If, however, the decree of the learned orphans’ court was wrong for the reason assigned by the appellant, to which we shall presently advert, then the testator died intestate as to so much of his estate as would accumulate at the rate of $120 per year between the death of his son Harry and the death of the appellant, and in such event the appellant, as the widow of a decedent dying intestate, would have at least such a nominal interest as would support her right to appeal.

Had the will contained nothing else but the clauses to which we have already referred, the question would be ruled by Little’s App., 81 Pa. 190. In that case the testator gave to one daughter Martha the income of one-third of his estate “ during the life of his daughter Elizabeth, or while she shall remain single.” There was no gift over of this share in the event that Martha died before the death or marriage of her sister Elizabeth. We should have stated that in the present case there was no gift over of the annual income given to the son Harry in the event he died before his mother. In the case cited Mr. Justice Paxson said: “It is to be observed that there is no gift over of this income upon the death of Mrs. Little (Martha). Nor is it a gift for life; it is a gift per autre vie. It is true it may not last for the life of Elizabeth, by reason of the contingency of her possible marriage. It is, nevertheless, a gift for the life of Elizabeth, subject to being determined by her marriage. ... In this state the use of the words heirs, executors, administrators or assigns, is not necessary to pass an absolute interest in a legacy by will. Had the gift of this income been to Mrs. Little, and to her executors, administrators and assigns, it would have been no stronger than it is with the Omission of those words, in the absence of any bequest over. Had the gift been of a legacy fixed in amount, there could have been no question that it would have passed to her administrator upon her death. Is it any the less a legacy because it is payable by installments of uncertain-amount? Had it been for a fixed sum, as an annuity, there would seem to me but little doubt, under the English authorities, that it would go to her personal representatives upon her death. Here the amount is not fixed, but it is capable of being reduced to certainty. We are of opinion that the gift of this income was a vested interest during the lifetime of the testator’s daughter Elizabeth, or so long as she shall remain unmarried, and that upon the death of Mrs. Little, it passed to her legal representatives for the period above stated.” As this case has been followed as late as Ritter’s Est., 190 Pa. 102, it would be conclusive of our question unless that conclusion is avoided by the presence in this will of a further provision, to which we shall now advert.

We have quoted at some length from the opinion, not because the correctness of our reasoning thus far is assailed by the appellant, as we understand the argument of her able counsel, but because the reasoning of the opinion seems to us to point strongly to the soundness of the conclusion reached by the learned court below.

. After having made the provision for his son already quoted, and a much more ample one in case he survived his mother, the will of the testator contains the following: “And the same shall not be subject to any assignment, pledge or anticipation by him, nor to any attachment issued upon any judgment, debt or claim against him, nor shall it be liable for any debts contracted by him in any way, or to any process of execution, sequestration or attachment.” If we give to these words the construction contended for by the appellant, there will follow the results that the legacy given by the testator to his son Harry was not a vested one, and, there being no gift over of this income in the event of his death, a case of partial intestacy of the testator. These conclusions, as already stated, are both against the ordinary presumptions of the law, and such a construction should not be adopted unless forced by the language of the will.

The argument for the appellant rests on the proposition that this case is ruled by Horwitz v. Norris, 49 Pa. 213. The question decided in that case was that the power of appointment given by the will of a testator to his son was not well executed by the will of the donee. In that case the original will directed the testamentary trustees to collect certain rents, etc., “and to pay over the net income thereof to the maintenance and support of his son, during his natural life, so as not to be liable for his debts, etc., and from the death of his said son, to the use and behoof” of such persons within a limited class, as the said son by his last will might appoint, etc.

In the present case the testamentary trustees are directed simply and absolutely to pay over a fixed and definite quarterly sum to his son. This money is in no way devoted by the testator to any particular use or purpose. With its payment to him the trust became fully executed, and the money was his to do with as he chose without restriction of any kind. Moreover, this money was to be paid to him not during his own life, but during the life of another. As there is no gift over in the event of his death, how can it be said that the direction of the testator to pay this sum during the life of his own widow has been complied with, or that the trustees have discharged their obligation. The provision of the will last quoted does not necessarily require the construction contended for. Full and reasonable effect may be given to every word used in that clause, if we hold that its purpose was to relieve the executors and trustees from the annoyance of litigation, and the fund in their hands from diminution or reduction by reason of any attempt on the part of the legatee himself, or his creditors, to seize it, use it, or control it in any other way than at the time and in the manner provided for in the will. In other words, to put it out of'the power of anybody to interfere with the prompt and regular payment to the son of the fixed sum named at the regular quarterly intervals provided for.

We are not able to find in the presence of this provision in the will any sufficient warrant to destroy the conclusions that otherwise would be certainly drawn from the will under the authorities cited, to wit, that the testator did not die intestate as to any part of the income that would accrue from his estate during the life of his wife, and that the legacy to his son Harry was a vested one. From this it would follow that the decree entered by the learned orphans’ court was correct, and the assignment of error must therefore be overruled.

Decree affirmed and appeal dismissed at the costs of the appellant.


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    Brennan, Appellant, v. Kauffman.

      Public officers — Poor directors — Power to remove..

    Where poor directors are given power to employ, “and at pleasure remove,” stewards, matrons and other attendants, they may remove without assigning any reason therefor a workman; and it is immaterial that the removal may have been brought about by two out of the three members of the board corruptly conspiring together to make removals and to divide appointments between them and each to vote for any person that the other might name for the position vacated without knowing who would be named. In such a case the person removed could not recover from the county for wages after his removal, although the person appointed in his place might recover for wages earned, if he was in no way connected with the illegal conspiracy.
    Argued Dec. 7, 1909.
    Appeal, No. 20, Oct. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1907, No. 375, on verdict for defendant in case of John J. Brennan v. Benjamin Kauffman et al., Directors of the Poor and House of Employment of Schuylkill County.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for wages. Before Marr, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court directed a verdict for the defendant, on the ground that the directors had full power at their pleasure to remove him from his position of shoemaker.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in directing a verdict for defendant.

      A. W. Schalck and W. F. Shepherd, for appellant.
    — A servant hired for a fixed term cannot be discharged without cause, during the term, and may recover for the whole term, deducting any amount obtained for work elsewhere, or which might have been obtained by reasonable effort: Trustees of Soldiers’ Orphans’ Home v. Shaffer, 63 Ill. 243; Hand v. Clearfield Coal Co., 143 Pa. 408.
    Municipal corporations, like all other corporations, and individuals, are liable to their employees employed for a definite time in case of their premature and unwarranted discharge, without cause, notice or hearing: Galveston County v. Dude, 91 Texas, 665 (45 S. W. Repr. 798); Hall-Moody Institute v. Copass, 108 Tenn. 582 (69 S. W. Repr. 327); Trainor v. Board of County Auditors, 15 L. R. A. 95; State v. Kuehn, 34 Wis. 229; Indiana v. Peelle, 8 L. R. A. 228.
    Traffic in public office or appointment, or in the administration of governmental affairs, is against public policy and will not be sanctioned by the courts: Filson v. Himes, 5 Pa. 452; Bowers v. Bowers, 26 Pa. 74; Bowman v. Coffroth, 59 Pa. 19; Wilkes-Barre v. Rockafellow, 171 Pa. 177; Providence Tool Co. v. Norris, 69 U. S. 45.

      Guy E. Farquhar, with him Morris H. Moyer, for appellee.—
    It is contended upon the part of the appellee that the appellant was appointed under the act of 1831, and that under the terms of said act the directors had a right to remove him at pleasure, without assigning any reason whatever, and that at the time'he accepted his appointment and entered upon his duties he was bound to know that he could be removed at any time that the directors might see fit, without assigning any reason therefor: Field v. Com., 32 Pa. 478; Brower v. Kantner, 190 Pa. 182; State ex rel. v. Stevens, 46 N. J. L. 344.
    March 3, 1910:
   Opinion by

Beaver, J.,

In Sallade v. Schuylkill County, 19 Pa. Superior Ct. 191, we held that, “An agreement between two out of three members of a poor board, by which the appointments to offices are divided between them, and by which each binds himself to vote for any person that the other may name for a position to be filled by the board, without knowing who would be named, is illegal, immoral and contrary to public policy; but notwithstanding the illegality of such an agreement, if a person is appointed clerk of the board in pursuance thereof, and performs the services of the office, he will be entitled to his salary, if it appears that he was in no way connected with the illegal contract, either as principal or accessory.”

We are here confronted with a question which is practically the converse of that decided in the case above cited. Shall the employee of the defendant, who was ousted from the position to which he had been regularly elected, under and in pursuance of such an agreement as is above referred to, be entitled to his pay for the year for which he was elected, notwithstanding the fact that another person was elected in his place and drew the pay to which he would have been entitled, if he had rendered service during the term for which he was elected?

Under the provisions of the Act of April 4, 1831, P. L. 422, entitled, “An act to provide for the erection of a house for the employment and support of the poor, in the county of Schuylkill,” it was expressly provided in the third section, that the directors therein provided for “shall employ, and at pleasure remove a steward or stewards, and require from him or them an oath- or affirmation, and such security for the faithful performance of his or their duties, as the board of directors shall deem expedient; and to appoint a matron or matrons, physician or physicians, surgeon or surgeons, and all other attendants that may be necessary for the said poor respectively, and at pleasure remove,” etc.

This act was amended by various subsequent acts which were later repealed, leaving the powers and duties of the directors of the poor, as originally conferred by the provisions of this act.

The plaintiff had been duly elected the shoemaker for the institution. After serving for one month, for which he was paid, he was removed by the directors, and another man chosen in his place. The corrupt agreement which is described and properly characterized in Sallade v. Schuylkill County, supra, is that under which the plaintiff was removed and his place filled by another.

After his removal, he brought suit for one month’s salary, in which he was unsuccessful. The record of that suit was offered in evidence in the trial of this case, but is not printed in the appellant’s paper-book.

We are asked to quash the appeal, because of the failure of the appellant to print the record. It is unquestionably a very material part of the evidence in the case and it is possible that the judgment in that case may be binding upon the plaintiff in this, but inasmuch as we are able to pass, upon the question here involved independently of the decision in that case, we prefer to rule the question on its merits rather than to quash the appeal, in view of the possible pendency of other similar cases.

On the trial of the case, the court below affirmed the single point presented by the defendants, which was, “That, under all the evidence, the verdict must be for the defendants,” the trial judge saying in his charge: “We direct a verdict for the defendants, and affirm the defendants’ point, that under all the evidence the verdict should be for the defendants. No action need be taken on the plaintiff’s points, because we are affirming the defendants’ point, which takes the case out of your hands.” The plaintiff presented some twelve distinct points and embraces in his specifications of error the refusal of the court to affirm the most of these several points respectively. These assignments of error, however, are not in accordance with our rule XV, and may for that reason be disregarded; but inasmuch as they are all practically embraced in the first assignment, it is unnecessary to refer to them further, inasmuch as the case is disposed of under the first assignment.

Coming now to the question of the removal of the plaintiff from his employment as shoemaker, if that employment had been during good behavior, it would, of course, have been necessary for the directors of the poor to have given notice and an opportunity for him to show that he was not guilty of misbehavior; or even if his removal had been within the discretion of the directors, the question as to whether their discretion had been legally exercised would have been a proper subject for judicial inquiry. The language of the act creating the board of directors of the poor, however, is unusual. The power of removal is practically unlimited and based solely upon the pleasure of the directors. The language of the act is “and at pleasure remove.” The trial judge in the court below said to the jury: “The language of the act of 1831 is very clear. It' says that they can employ or remove at pleasure. There is nothing in the act which gives a court the right to inquire into the motives, however improper, however wrongful they may have been.”

The subject is quite fully discussed in Field v. Com., 32 Pa. 478, which was a writ of quo warranto to inquire by what authority the defendant claimed to exercise the office of county superintendent of common schools for the county of Schuylkill.' Mr. Justice Read, as was his custom, entered into the discussion of the subject quite exhaustively, quoting pertinent authorities, in the course of which he said: “Where an appointment is during pleasure, or the power of removal is entirely discretionary, there the will of the appointing or removing power is without control, and no reason can be asked for, nor is it necessary that any cause should be assigned. This branch of the subject has been so fully discussed by the supreme court of the United States in Ex parte Duncan N. Hennen, 38 U. S. 230, that it is only necessary to refer to it; and, by analogy to the power of removal exercised by the president, collectors may remove their subordinates without consulting the secretary of the treasury, though the approbation of the latter be necessary to an appointment, and it is not a breach of official duty on the part of collectors to refuse to report their reasons for removing these subordinate officers.” In discussing the English authorities and quoting from Chief Justice Tindal at length, he said: “This is no doubt the true rule: where the appointment is only during pleasure, it is then an office ad libitum, or at pleasure.” See also State of Kansas ex rel. Little v. Mitchell, 20 L. R. A. 306. The subject is also very fully discussed in a note to Trainor et al. v. Board of County Auditors of Wayne County, 15 L. R. A. 95, in which it is stated that, “ Where the power of appointment is conferred in general terms and without restriction, the power of removal in the discretion and at the will of the appointing power is implied and always exists, unless restrained and limited by some provision of law.” Here, however, there is no necessity for assuming an implied power to remove, because it is expressly conferred by the law which creates the board of poor directors in the broadest and most comprehensive terms possible. The ground of removal is not for misbehavior; it is not even at the discretion of the directors; it is at their pleasure.

The plaintiff accepted employment with a knowledge of the law, and he was bound to know the terms upon which employment was given him and during which it was to continue. When, therefore, he was removed, accepted the edict of the directors, saw a man employed in his place who was paid for the work which was done in pursuance of that employment, we fail to see how the county can be liable, when the directors did what they were expressly authorized to do under the law — exercised their pleasure in his removal. It is clearly understood that this is not a question of the liability of the directors who entered into the corrupt conspiracy for the removal of the officers and employees of the house of employment. It is a question as to whether or not the directors of the poor, who had the exclusive management thereof, having exercised the power conferred upon them by the act which created them, thereby bound the county to pay twice for the same services. Under our ruling in Sallade v. Schuylkill County, 19 Pa. Superior Ct. 191, the successor of the plaintiff was undoubtedly entitled to his pay, having performed the services which were required of him, in the absence of any evidence of wrongdoing on his part. If, therefore, the plaintiff should recover, the taxpayers of the county of Schuylkill would be paying twice for the same service. If their representatives had bound them in a way that was legal and right to do this, there might be no escape, but the appellant’s contention is that the action of the directors was corrupt and, therefore, illegal; that, being based upon a criminal conspiracy of two of them, the act of the board in carrying out that conspiracy was invalid and equally corrupt and wholly void. Assuming, as we do, that the act of the two individual directors who conspired together to oust the officers and employees of the house of employment was illegal and criminal, nevertheless when the board met in regular session-and a majority of them determined to remove the plaintiff among other officers and employees, they acted within their lawful authority and carried out their scheme in a legal, although somewhat arbitrary, manner. Whatever, therefore, the rights of the plaintiff might be, as against the individual directors who corruptly conspired to exercise their lawful authority, in pursuance of an agreement wholly subversive of good morals and contrary to enlightened public policy, we cannot see that the consequences of their malfeasance in office should be visited upon the taxpayers of the county.

We are, therefore, of the opinion that the court properly disposed of the case, as presented by the defendants in affirming their only point that, “under all the evidence, the verdict should be for the defendants.”

Judgment affirmed.'