author: Beaver, J.,

text:
    Freeman v. Wilkes-Barre & Wyoming Valley Traction Company, Appellant.

      Negligence — Street railways — Improper remarks of counsel — Withdrawal of juror and continuance — Trial—Practice, C. P.

    Where, in a negligence case against a street railway company, counsel for the plaintiff in his address to the jury injects his personal experience as a standard of measurement of the conduct of the company’s agent, uses language which is equivalent to the statement of a fact not proved, and appeals' to the prejudice and sympathy of the jury by reference to the poverty of the plaintiff, a juror should be withdrawn and the case continued.
    Such action should be taken by the court where the plaintiff’s attorney uses language as follows: “The doctor in charge of staff would have taken R. (agent for defendant) by the neck and kicked him out. According to R’s story, if he had any decency or was even human, he would not have done- business with the plaintiff at the hospital. The conduct of this agent was the most brutal and inhuman in my experience. They (doctors, naming them) are excrescences, a disgrace to the profession they belong to. Of course if we had the fees for doctors we could have brought them into court and shown that plaintiff is so bad that he cannot now even hold the lines of his horses.”
    Argued March 4, 1908.
    Appeal, No. 51, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1905, No. 284, on verdict for plaintiff in case of Aaron Freeman v. Wilkes-Barre & Wyoming Valley Traction Company.
    April 20, 1908:
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,200. Defendant appealed.

      Errors assigned amongst others were (4) portion of charge, quoted in the opinion of the Superior Court, and (9) in not withdrawing a juror and continuing the case because of the language used by plaintiff’s counsel, and quoted in the opinion of the Superior Court.

      Paul Bedford, with him John T. Lenahan, for appellant.—
    We claim that the ninth assignment should be sustained upon the authority of Fisher v. Pennsylvania Co., 34 Pa. Superior Ct. 500; Hale v. Hale, 32 Pa. Superior Ct. 37; Holden v. Penna. Railroad Co., 169 Pa. 1; Walsh v. Wilkes-Barre, 215 Pa. 226; Saxton v. Pittsburg Rys. Co., 219 Pa. 492.

      John McGahren, with him D. L. Rhone and D. L. & J. Q. Crevling, for appellee. —
    It is peculiarly within the discretionary duty of the trial court to see that the -trial is conducted in a legal and orderly manner, and unless this discretion is abused such order is not subject to appeal: Com. v. McMahon, 14 Pa. Superior Ct. 621-626; Fisher v. Penna. Company, 34 Pa. Superior Ct. 500, not yet reported and cited by the appellant, does not apply to the remarks of counsel in this case, they being of another nature.
    The case of Hale v. Hale, 32 Pa. Superior Ct. 37, are remarks made in disparagement of the parties and, therefore, does not apply.
    Walsh v. Wilkes-Barre, 215 Pa. 226, related also to the disparagement of the parties.
   Opinion by

Beaver, J.,

A careful reading of all the testimony in this case satisfies us that the questions of the negligence of the defendant, the contributory negligence of the plaintiff and the execution and delivery of the written release of the plaintiff to the defendant were all for the jury and were properly submitted by the court to them. We, therefore, eliminate from the further consideration of the case all of the assignments of error, except the fourth and ninth.

The fourth assignment' relates to an observation of the court in the charge, concerning the execution of the written release as follows: “You will observe the plaintiff was able to write, but nothing but his mark is made.” This is a detached sentence from the charge of the court, in which the release, alleged to have been executed by the plaintiff, was under discussion. The portion of the charge legitimately relating to this subject was: “If the plaintiff signed the release in the absence of fraud practiced upon him, he is presumed to have known the contents and is estopped from recovering. You observe the plaintiff was able to write, but nothing but his mark was made.” It is possible that the remark complained of might have raised a suspicion in the mind of the jury as to the fact of the plaintiff’s execution of the release and of a fraud practiced upon him in connection therewith. It would doubtless have been better to have followed that with the remark that a broken clavicle, which is barely alluded to in another part of the charge, might have prevented his attaching his signature to the paper, and such an explanation would have relieved the statement of any approach to a one-sided presentation of the facts. If this were the only thing complained of, it is doubtful whether it would warrant a reversal.

The serious point in the case, however, is the question raised by the ninth assignment of error. It relates to remarks of counsel in their closing address to the jury which, as shown by the record, were as follows: “The doctor in charge of staff would (?) have taken Randolph by the neck and kicked him out. According to Randolph’s (agent for defendant) story, if he had any decency or was even human, he would not have done any business with the plaintiff at the hospital. The conduct of this agent was the most brutal and inhuman in my experience. They (Beahl and McKee) are excrescences, a disgrace to the profession they belong to. Of course, if we had the fees for doctors, we could have brought them into court and shown that plaintiff is so bad that he cannot now even hold the lines of his horses.” The attention of the court was called to this language and a motion made by the defendant’s attorney, that “A juror be withdrawn and the case be continued.” This motion was denied. We are of opinion that this language was improper in several respects. Injecting the personal experience of counsel as a standard of measurement of the conduct of the agent certainly was not allowable. If the question as to the decency and humanity of the action of the agent for defendant had been a proper subject for expert testimony, the counsel might have been, if the ground had been laid therefor, a proper • witness; and, although it might have been within the proper limits of the argument to the jury to characterize his acts as indecent and inhuman, it was not proper to measure them by the experience of counsel. The remark, “Of course, if we had the fees for doctors, we could have brought them into court and shown that plaintiff is so bad that he cannot now even hold the lines of his horses,” was equivalent to the statement of a fact not proved — that the defendant was in worse condition than had been made known to the jury by the testimony in the case. It was likewise an appeal to the prejudice and sympathy of the jury, because the necessary and unavoidable inference was the poverty of the plaintiff. It was wholly unwarranted and should have been promptly rebuked and remedied by the-court. The only remedy in such a case, as pointed out by Mr. Justice Fell, in the late case of Saxton v. Pittsburg Railways Co., 219 Pa. 492, was by the withdrawal of a juror and the continuance of the case. It is there said:

“There was not the slightest foundation in the testimony, nor in the circumstances connected with the case, to support the statement of counsel that there had been a suppression of evidence, and the jury were so instructed by the court, in answer to points presented by defendant’s counsel. This instruction did not cure the error of counsel.' The effect of the statement on the minds of the jury is as manifest as was its purpose. The other statements were intemperate appeals to the prejudices of the jury and invitations to find a verdict on false grounds.

“No verdict that may have been obtained by such means should be allowed to stand and the effective remedy is to withdraw a juror and continue the case. If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge. A cause is not well tried, unless fairly tried, and a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony. It is not founded on the truth of the cause.”

See also, to the same effect, Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226, and Hollis v. U. S. Glass Co., 220 Pa. 49.

We regret the necessity which compels a reversal of this case, as it was, in other respects, fairly tried.

Judgment reversed, with a new venire.


source: Caselaw Access Project

license: Public Domain

text:
    The Scrantonian v. Brown, Appellant.

      Partnership — Dissolution—Release of retiring partner — Consideration —Act of April 14,1851, P. L. 612.
    A contract releasing one member of a partnership by a creditor of the partnership must be based upon a good and lawful consideration in so far as past indebtedness is concerned, but this rule does not apply to any future indebtedness which may have been created after notice of dissolution of the partnership was given to the creditor.
    Where on the trial of an issue which involves the distinction between past and future indebtedness, the court correctly distinguishes between the two classes in the general charge, but failed to do so in answers to points in which the distinction is not made, the failure to make such distinction in the answers is ground for reversal of the judgment.
    The Act of April 14, 1851, P. L. 612, providing for the filing of the names and location of the members of a partnership in the office of the prothonotary, applies only to persons who are actually members of the partnership, and does not apply to persons not members, nor preclude such persons from setting up the fact that no partnership existed.
    Where one of the defendants sued as a partner is in fact not a partner and this fact is admitted by the other defendants, the court cannot be charged with error in permitting the plaintiff after the trial to enter a nol. pros, as to such defendant nunc pro tunc as of the time of trial.

      Partnership — Evidence—Call of party as upon cross-examination— Witness — Act of May 23,1887, sec. 7, P. L. 158.
    Where in an action against three persons sued as partners the plaintiff calls one of the persons as upon cross-examination, under the Act of May 23, 1887, see. 7, P. L. 158, the other defendants are not precluded from examining the witness as to anything legitimately growing out of his cross-examination. The court therefore commits error if it shuts off the offer of another of the defendants to examine the defendant witness without first ascertaining whether or not the question to be asked, and the'further pursuit of the examination related to the testimony which he had given as upon cross-examination. The fact that the witness, by being called as for cross-examination is made a competent witness for the other party does not help the matter, for the other party may not wish to make him his own witness.
    Argued March 5, 1908.
    Appeal, No. 9, Jan. T., 1908, by-defendants, from judgment of C. P. Lackawanna Co., Sept. Term, 1905, No. 650, on verdict for plaintiff in case of Richard Little, trading as The Scrantonian, v. George Astwood, H. C. C. Astwood, Jr., Alamanzo Porter, John R. Sparks, David T. Brown and George W. Brown.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit against several persons as partners.
    At the trial H. C. C. Astwood, one of the defendants, was called by the plaintiff as for cross-examination, and after he had testified he was examined by defendants’ counsel as follows:
    Mr. Comegys: “Q. We would like to ask the witness a question.”
    Mr. O’Malley. We object to that.
    ;The Court: I sustain the objection, exception noted and bill sealed for the defendants. [6]
    Mr. O’Malley: “Q. Where do you live? ”
    Mr. Dawson: We object to one of the defendants being called as for cross-examination, since the defense set up is that Alamanzo Porter, one of the defendants, was never a member of the firm of this copartnership, and, therefore, as to him, this man could not be called as for cross-examination, and we would like to have an offer as to what they proposed to prove, as we think the question of the defendant is advisable.
    The Court: We overrule the objection, bill sealed and exception noted for the defendants. [7]
    Plaintiff presented the followings points:
    2. George W. Brown having admitted that he was a member of the Defender Publishing Company, the burden is upon him of convincing the jury by the fair weight of the testimony that he was released from the liability by the plaintiff in this case, and that this release was based upon a good and lawful consideration. Answer: I affirm this point. [1]
    4. A contract releasing one member of a partnership by a creditor of a partnership must be based upon a good and lawful consideration. Hence, if the jury find from all the testimony that no good and lawful consideration passed directly from George W. Brown to the plaintiff for the alleged release by the plaintiff of George W. Brown, then the plaintiff is entitled to recover against him the same as against the other defendants. Answer: I affirm this point. [2]
    The court charged in part as follows:
    [It is my duty to instruct you, as a matter of law, that George W. Brown and Alamanzo Porter are not in a position to deny their partnership in the defendant firm.] [3]
    [After much of the evidence was in It was admitted of record that the partnership had not been registered in the prothonotary’s office as provided by .the act of 1851. This act provides that on failure to so register a partnership will not be permitted, at the trial of a case against it in court, to plead the inclusion of the names of persons not members of the partnership. If a person is sued as a member of a firm, and he claims he was not a member, the law provides a way in which he can have that question settled for himself by proper proceedings in court; therefore, for the purpose of this case, George W. Brown and Alamanzo Porter must be considered as partners to the end of January, 1905, when the firm ceased publishing the newspaper called “ The Defender.”
    April 20, 1908:
    The defense of no partnership, as to these two men, falls for ■the reason that I have stated. There is a difference, under the evidence, between the claims of Porter and George W. Brown. Porter claims he never was a member of the firm; Brown admits he was a member until June, and his counsel have argued the case in part, upon the theory that Brown, although he might possibly be considered a partner up to January, 1905, was nevertheless released from all liability to the plaintiff after June, 1904. But, in law, there is no difference between George W. Brown and Porter, so far as their being members of the partnership are concerned, and so far as their right is concerned to raise that question in this case, the jury must consider them as partners. This brings the issue in this case down to a narrow compass.] [4] -
    Verdict and judgment for plaintiff for $1,239.68. Defendants appealed.

      Errors assigned were (1, 2, 3, 4) above instructions, quoting them; (5) in entering a noil. pros, as to Porter, and (6, 7) rulings on evidence, quoting the bill of exceptions.

      A. A. Vosburg, with him Charles W. Dawson, for appellant.—
    The defendants should have been allowed to cross-examine the Astwoods, although they were called as for cross-examination: Corkery v. O’Neill, 9 Pa. Superior Ct. 335.

      E. N. Willard, with him Everett Warren, Henry A. Knapp, Charles P. O’Malley and B. F. Tinkham, for appellee.
   Opinion by

Beaver, J.,

In the case under review, it was sought to hold appellant as a partner with other parties interested in the publication of a newspaper known as "The Defender.” The appellant admitted his liability as a partner until June, 1904, when, as he alleged, he ceased to have any connection with the publication and so notified the plaintiff, when it was agreed that he (the appellant) should not be held responsible for any indebtedness connected with the publication of “The Defender.” The appellant admits, in his history of the case, that Porter, who was joined with him and others, as a partner, as defendant, never was a member of the partnership which published the paper. A verdict was obtained against all the defendants and, upon a motion for a new trial, a nol. pros, was entered as to Porter.

The several assignments of error raise the various questions involved, so that no further statement of the facts is necessary.

The first and second assignments of error are based upon the affirmation of the plaintiff’s second and fourth points for charge, both of which rest upon the general principle, as stated therein, that “A contract releasing one member of a partnership by a creditor of a partnership must be based upon a good and lawful consideration.” This statement of the law is correct, so far as past indebtedness is concerned, but does not apply to any future indebtedness which may have been created after notice of dissolution of the partnership was given to the creditor. The court distinguishes between past and future indebtedness in the general charge, but there is no distinction in the points which were affirmed, and although it is argued that the points •related only to past indebtedness, that should have appeared, because, as we understand it, the claim was not only for indebtedness already incurred when the notice of the dissolution of the partnership was alleged to have been given, but for indebtedness which was incurred after 'that time. If this distinction had been observed in the points themselves, the answers would have been entirely correct. It is claimed, however, that the distinction was made in the general charge. It is true that the court correctly stated the rule in the general charge, but with the broad statement contained in the second and fourth points, which were affirmed without qualification, the jury were left in uncertainty and may have been misled. The distinction made in the charge should have been continued by a qualification in the answers to the points, so as to limit the necessity for a good and lawful consideration for a release to past indebtedness.- For this reason, these assignments are sustained.

It was claimed in the course of the trial that none of the defendants could deny the partnership, for the reason that the thirteenth and fourteenth sections of the Act of April 14,1851, P. L. 612, had not been complied with. The provisions of this act of assembly, however, as we view it, apply only to persons who are actually members of a partnership and who, if they fail to file “in the office of the prothonotary, in the county or counties where the said partnership is carried on, the names and location of the members of such partnership, with the style and name of the same, .... shall not be permitted in any suits or actions against them in any court," or before any justice of the peace or alderman in this commonwealth, to plead any misnomer or the omission of the name of any member of the partnership, or the inclusion of the names of persons not members of said partnership;” but this act does not apply to persons who are not members of a partnership and does not preclude them from setting up the fact that no partnership existed as a defense. We think the court was wrong in charging, as assigned for error in the third and fourth assignments, but inasmuch as Porter, who was not a member of the firm, is not complaining here and a nol. pros, was entered as. to him later, on the application for a new trial, we cannot see that the appellant is injured, for he was admittedly a partner.

The fifth assignment relates to the order of the court in allowing the plaintiff “ to enter nolle prosequi as to Alamanzo Porter nunc pro tunc as of the time of trial.” This practice is distinctly sanctioned in Ganzer v. Fricke, 57 Pa. 316. The appellant was not injured, because he frankly states in his history of the case that Porter “never was a member of the partnership which published this paper.”

Astwood, one of the defendants, was called by the plaintiff, as upon cross-examination. It is claimed by the appellant that, inasmuch as Porter was not a partner, he could not be called, because his testimony might affect him, but Porter is not complaining and the fact of his being a member of the partnership was the question in dispute and no one could have a better knowledge as to that fact than one of the partners.

The seventh section of the Act of May 23, 1887, P. L. 158, upon which the right to call a party, as upon cross-examination, is based, is as follows:

“Section 7. In any civil proceeding whether or not it be ■brought or defended by a person representing the interests of a deceased or lunatic assignor of anything or contract in action, a party to the record or a person for whose immediate benefit such proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, .may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters, whether or not those matters were touched upon in his cross-examination; and also, where one of several plaintiffs or defendants, or the person for whose immediate benefit such proceeding is prosecuted or defended, or such other person having an adverse interest, is cross-examined under this section, his coplaintiffs or codefendants shall thereby become fully competent witnesses on their own behalf as to all relevant matters, whether or not these matters were touched upon in such cross-examination,”

It will be observed that there is nothing in this section which in any way limits the right of either party, when called as for cross-examination, to examine the witness as to anything to which his cross-examination relates. Although we think .Astwood was prope'rly called as for cross-examination, the defendant was not precluded from examining him as to anything legitimately growing out of his cross-examination. It was, therefore, error for the court, when the defendant proposed to ask him' a question, to sustain the objection thereto, without finding out to what the question related. It is very true, as we have said, in Corkery v. O’Neill, 9 Pa. Superior Ct. 335, as fairly outlined in the syllabus: “Where the defendant is called by the plaintiff for cross-examination, it is not error for the trial judge to refuse to permit defendant’s endeavor to intro•duce his main defense by examination on matters which his examination by plaintiff had not opened up,” but it by no means follows that there can be no examination of the witness called as upon cross-examination, if that examination be limited to what legitimately grows out of the cross-examination. Indeed, the plain inference is quite the reverse.

The case under consideration affords a good illustration of the wrong which might be done if no examination were allowed under such circumstances. The witness, who was called as upon cross-examination, was without doubt liable for the plaintiff’s claim. By his testimony in cross-examination, he might have sought to make both of the defendants hable with him for the entire claim of the plaintiff. His interest, therefore, was, in a measure, antagonistic to that of the other defendants. Surely they should have the right to inquire, within proper limits, of course, as to the truth of his statements and to pursue the inquiry, in order to bring out the whole truth in regard to the matter, so far and so far only as it was involved in his cross-examination. We think, therefore, the court was in error in shutting off the offer of the defendant to examine the witness, without first ascertaining whether or not the question to be asked and the further pursuit of the examination related to the testimony which he had given, as upon cross-examination. It is said that this has been the practice in Lackawanna county for a number of years, but we cannot sanction the practice, if it is not in accordance with law. There is nothing in the act of assembly which in any way limits the right of the adverse party to continue the examination of a witness who has been called by the other party, as upon cross-examination, and, as this case clearly shows, such a practice may result in gross injustice. The fact that the witness, by being called as for cross-examination, is made a competent witness for the other party, does not help the matter, for, as in the present case, the other party may not wish to make him his own witness. The sixth assignment is sustained.

Judgment reversed and a new venire awarded.


author: Orlad y, J.,

text:
    Reyer, Appellant, v. Rice.

      Sale — Sale of goods — Contract—Transfer of possession.

    When a purchase of goods is made in good faith and for a valuable consideration followed by acts intended to transfer possession as well as the title, and the vendee assumes such control of property as reasonably to indicate a change of ownership, the delivery of possession as a matter of law, cannot be declared to be insufficient. No such change of possession as will defeat the fair and honest purpose of the parties is required.
    Whether the sale is in good faith or colorable, whether under the circumstances the change of possession is all that could reasonably have been expected by the vendees, taking into consideration the character and situation of the property, are questions of fact to be determined by the jury.
    The declarations of a vendor made after the sale, are not competent evidence to affect the title of the vendee.
    Where the sale of a newspaper together with the presses and other articles incident to a newspaper establishment is not followed by an immediate removal, or notice of change of ownership by advertising in the newspaper, or placing signs on the premises in which it was located, or on the machinery, a verdict and judgment for an execution creditor of the vendor in an interpleader, will be sustained.
    Argued Dec. 3, 1907.
    Appeal, No. 246, Oct. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1906, No. 25, on verdict for defendant in case of Aaron Reyer and E. H. Laubach v. Louis C. Rice.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Sheriff’s interpleader to determine ownership of a newspaper establishment. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    At the trial when Charles D. Andrews, a witness for defendants, was on the stand the following offer was made:
    Mr. Gernerd: I propose to prove by this witness that E. J. Royer was doing his banking business with the Cement National Bank of Siegfried; that after the dissolution he continued to do that; that drafts were sent on from different places on the “Cement News” for materials that were bought, and that E. J. Royer acknowledged and honored those drafts; that at no time Aaron Reyer or Senator Laubach had an account there in the bank or paid any of these drafts that were sent on in the name of the “Cement News,” indicating in that capacity that there was no sign of any kind to the public that there had been such a change of ownership as we believe the law requires.
    Objected to.
    The Court: I think we will permit this testimony. Bill sealed for plaintiff. [1]
    Charles D. Andrews, recalled by defendant.
    Mr. Gernerd: “Q. Did you have any dealings with the 'Cement News’ ? A. Yes, sir, E. J. Royer.”
    Mr. Gernerd: I wish to prove by this witness that he had dealings with this firm, and that bills were sent to him in the name of E. J. Royer, and even his subscription was sent to him.
    Same objection.
    Mr. Stewart: We offer to prove further by this witness that during the years 1905 and 1906 that the “Cement News” published the bank statement of the Cement National Bank, and that Edward J. Royer took the affidavit required by the government that he was the owner and publisher of the “Cement News,” and that the bank statement was published in his paper.
    Objected to for the same reason and upon the same principle that the objections heretofore were made; that Edward J. Royer by his act or declaration cannot affect our rule.
    The Court: Any declarations that Royer has made as bearing on the title of this property we exclude, but the manner in which this business was conducted we permit, and we will permit you to ask this witness whether the bank statement was published in this paper and who negotiated for it if you desire, and questions of that nature, as bearing on the question who was actually in possession of this property, because that is what will have to go to this jury. The part that Royer swore that he owned this, that part, if he said that, we exclude. Bill sealed for plaintiff. [2]

      Defendant presented these points:
    1. That if from the evidence the jury find said alleged sale to Reyer and Laubach to have been' honest and for value, yet there was not such an open, notorious and visible change of possession of and from Royer to the plaintiff as would be apparent to the public, the same is a fraud in law and not binding on Louis C. Rice, the defendant, one of the creditors of Royer at the time of the alleged sale to Reyer and Laubach, and the verdict must be for the defendant. Answer: That proposition is affirmed. [3]
    2. That if the goods in suit were never removed from the possession and control of Royer by the plaintiff, the mere fact that Royer moved same from the building where the goods were in May, 1905, to another building, this change does not make such open, notorious and visible ‘ change of possession as the law. contemplated when he sold to Reyer and Laubach, and the change of possession which the law requires must be an actual or constructive delivery from Royer to Reyer and Laubach. Answer: That proposition is affirmed. [4]
    Verdict and judgment for defendant. Plaintiff appealed.'
    . Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.

      Edward J. Fox, with him James W. Fox and Thomas D. Danner, for appellant. —
    The declarations of the vendor, made after the sale, are not competent evidence to affect the title of the vendee: Babb v. Clemson, 12 S. & R. 328; Pier v. Duff, 63 Pa. 59; Sackett v. Spencer, 65 Pa. 89.
    The character of .the business, position of the parties, the possibility of. prompt removal and many other circumstances are to be taken into consideration upon the question of the bona fides of the transaction: Stephens v. Gifford, 137 Pa. 219; Kendig v. Binkley, 10 Pa. Superior Ct. 463; Bell v. McCloskey, 155 Pa. 319; Garretson v. Hackenberg, 144 Pa. 107; McCullough v. Willey, 200 Pa. 168.

      Fred B. Oemerd, for appellee.- —
    The retention of possession of personal chattels is fraud in law where the subject of the transfer is capable of delivery, and no honest, fair reason can be assigned for the vendor not giving and the vendee not taking possession: Weller v. Meeder, 2 Pa. Superior Ct. 488; Kendig v. Binkley, 10 Pa. Superior Ct. 463; Stephens v. Gifford, 137 Pa. 219; Riggs v. Bair, 213 Pa. 402; Barlow v. Fox, 203 Pa. 114; Renninger v. Spatz, 128 Pa. 524; Goddard, Hill & Co. v. Weil & Co., 165 Pa. 419; Haynes v. Hunsicker, 26 Pa. 58; Cessna v. Nimick, 113 Pa. 70; Ayers v. McCandless, 147 Pa. 49; White v. Gunn, 205 Pa. 229; McCullough v. Willey, 200 Pa. 168.
    April 20, 1908:
   Opinion by

Orlad y, J.,

On the application of the sheriff for an interpleader, a feigned issue was framed in the court below, in order to determine the title to certain personal property, which on May 26, 1905, was owned by Lewis C. Rice and Edward J. Royer, and used by. them in a job printing establishment and also in the printing of a newspaper. On that date the partnership between them was dissolved by Rice selling the newspaper business part of the enterprise to E. J. Royer who, in turn, sold the same property to Reyer and Laubach, the plaintiffs herein, and executed a bill of sale to them for the presses, racks, boiler,, engine and other articles that were incident to and part of the newspaper establishment; Royer, and afterwards Reyer and Laubach, paying therefor a fair consideration for the property. It is conceded that as between Royer and the purchasers, Reyer and' Laubach, the transaction was an entirely honest one, the only question being as to the integrity of the sale affecting the rights of Royer’s creditors.

An execution was issued at the instance of Rice, the defendant herein, on a judgment he held against Royer, and a levy made thereunder on these goods: the plaintiff in the execution (Rice) contending that there was not a sufficient delivery of possession of the property to consummate the sale in law.

Immediately after Rice’s interest in the partnership property had been sold, he took down from the building the sign indicating that he and Royer were the publishers and owners of the newspaper, but no other sign was substituted in its stead. In addition to this, the editorial column of the newspaper, prior to the dissolution of the partnership, contained the announcement that Rice and Royer were the proprietors, and Edward J. Royer, the editor, and following the dissolution,, an announcement in the same column stated that Edward J. Royer was the editor but there was no statement or suggestion as to who was the owner or proprietor.

Subsequently, they moved the property some distance from its former quarters, but failed to give any notice of its ownership, either by advertising in the newspaper, or placing signs on the building or room in which it was located, or on the machinery.

When the levy was made Reyer and. Laubach claimed to be the owners, and the question submitted to the jury on the trial of the feigned issue' was purely one of fact. “Did these plaintiffs, Reyer and Laubach, take such possession of this property as would indicate to the public that they were the owners thereof? If they did, then your verdict should be in their favor for the goods described; if you find that they did not take such possession as the law requires and as I have defined to you, your verdict should be for the defendant.”

It is well settled that a change in the location of the property is not necessary, but due regard must be had to the care of the property, its intended use, the nature of the transaction, position of the parties, etc., and there are many instances in which, from the necessity of the case, there can only be a constructive delivery. When a purchase is made in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumes such control of the property as reasonably to indicate a change of ownership, the delivery of possession as matter of law, cannot be declared to be insufficient. No such change of possession as will defeat the fair and honest purpose of the parties is required: Garretson v. Hackenberg, 144 Pa. 107. Whether the sale was in good faith or colorable, whether under the circumstances the change of possession was all that could reasonably have been expected by the vendees, taking into, consideration the character and situation of the property, were questions of fact tó be determined by the jury.

The Supreme Court held in White v. Gunn, 205 Pa. 229 (in referring to the leading case of Clow v. Woods, 5 S. & R. 275, which requires the purchaser of personal property to take and retain possession of it), “It is as true now as it was when the rule was announced in that case, nearly a century ago, that, if a purchaser pays the price for goods purchased by him, without taking possession of them, he takes the risk of the integrity and solvency of his vendor when the rights of a subsequent bona fide purchaser or an execution creditor arise.”

Assuming that the purchase was made in good faith for a valuable consideration, certain acts which the law regards as of equal importance with the payment of consideration money, yet remained undone. The court below, submitted the whole question to the jury under a fair and adequate charge.

It is quite true that the declarations of a vendor, made after the sale, are not competent evidence to affect the title of the vendee. Royer’s acceptance of the draft on the Cement News ” and the affidavit made by him-, as editor, that a certain bank statement had been published in the newspaper, were substantive facts to be taken not as mere declarations, but in connection with the general management of the business by the persons who had actual control of the property.

The editor of the newspaper could not make the affidavit if he were not in fact identified with it, and no other than an owner of the Cement News ” would accept the draft in evidence. These facts were for the consideration of the jury in order to determine the bona fides of the transfer of possession.

The judgment is affirmed.


author: Orlady, J.,

text:
    Knepper v. Tamaqua Borough, Appellant.

      Negligence — Boroughs—Fall at crossing in street — Contributory negligence.

    In an action by a woman against a borough to recover for personal injuries sustained by slipping on smooth or icy stones at a crossing and striking her foot against a crossing plate, binding instructions for the defendant are proper where the testimony does not show exactly what caused the fall, but does show that it was after plaintiff had slipped that her foot struck against the crossing plate which extended above the level of the pavement, but which without her first slipping and falling against it would have done her no injury.
    Submitted Dec. 5, 1907.
    Appeal, No. 171, Oct. T., 1907, by defendant, from judgment of O. P. Schuylkill Co., March T., 1907, No. 141, on verdict for plaintiff in case of Annie Knepper v. Tamaqua Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Bechtel, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $25.00. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. O. Ulrich, for appellant. —
    -The crossing, the gutter and the crossing plate over the gutter were in a safe condition and the crossing plate was in the same position that it had been for months. It was not dangerous and it was the same kind of plate and in the same kind of position as other plates in other parts of the town; in fact it was the kind of a plate used in the manner and method adopted by the borough for crossings over gutters: Canavan v. City of Oil City, 183 Pa. 611.
    The plaintiff knowing of the incline on the pavement and the slippery condition at the time should have exercised better judgment and left the pavement and walked on the street, but with this knowledge of the condition of the crossing the plaintiff assumed the risk and therefore cannot recover: Horner v. Philadelphia, 194 Pa. 542; Mueller v. Ross Township, 152 Pa. 399; Conrad v. Upper Augusta Township, 200 Pa. 337; Garland v. Wilkes-Barre, 212 Pa. 151; McCabe v. Philadelphia, 217 Pa. 140; Duncan v. Philadelphia, 173 Pa. 550; Reed v. Tarentum Borough, 213 Pa. 357.
    A borough is not bound to remove every inequality in a street: Kelchner v. Nanticoke Boro., 209 Pa. 412; Mason v. Philadelphia, 205 Pa. 177; Wright v. Lancaster, 203 Pa. 276.
    April 20, 1908:

      Wm. Wilhelm, with him Robert J. Oraeff, for appellee,
    cited: Kellow v. Scranton, 195 Pa. 134.
   Opinion by

Orlady, J.,

On the trial of this case in the court below the defendant presented a request for instruction to the jury “That under all the evidence the verdict of the jury must be for the defendant," which was refused at the time of trial, and reserved for further consideration by the court; and subsequently a judgment was entered on the verdict. The facts in the case are not disputed. The plaintiff testified that she received her injuries while walking along a street with which she was perfectly familiar about half past eight at night, and as she describes it, “ I do not know what I slipped on. It was dark, the lamps were .out, but I did not slip on the crossing plate. Certainly I slipped, but I guess-there was ice there when I slipped, but I would not slip on the stones.” She knew there was a crossing plate at the point where she slipped, that the night was dark, and as she states, “my feet went from under me; one foot went out, and the other went under me.” She does not pretend to declare the immediate cause of her fall. After having slipped, her foot struck against a plate which extended above the level of the pavement, but which without her first slipping and falling against it, would have done her no injury. It was not the cause of the accident, independent of the question whether it was an obstruction to public travel, or whether the borough had constructive notice of its existence; and when asked as to whether she could have seen it if she had looked, she replied, “I guess I could if I had looked, if I had looked right sharp. I was not looking for such things. I was walking along, minding my business. I would not have known that that plate had been raised if Brachman did not tell me.” Under all the authorities it is clear, that the cause of her injury is not so definitely ascertained by the testimony as to make the borough liable.

The judgment is reversed.


author: Rice, P. J.,

text:
    Thomas’s Estate.

      Equity — Orphans’ court — Evidence—Cancellation of agreement — Refusal to enforce agreement — Family settlement.

    Where a plaintiff in an equity case has failed to secure the cancellation of an agreement in the nature of a family settlement, and subsequently in- the orphans’ court seeks to prevent the execution of the agreement, and the latter court, after an independent consideration of the testimony, which was substantially the same, and a great part identical with that in the equity case, sustains the agreement, the appellate court will uphold the decree of the orphans’ court, where there is nothing shown in equity and good conscience why the terms of the agreement should not be specifically performed.
    In such a case where the plaintiff and the defendant in the equity suit are entitled under the agreement to equal shares in the residue of the estate, the plaintiff has no ground to complaint of the court’s action in deducting the costs of the equity suit from the residue and dividing the balance between the two distributees. The effect is to relieve plaintiff of one-half of the costs of his unsuccessful equity suit.
    Argued Dec. 5, 1907.
    Appeal, No. 160, Oct. T., 1907, by Alvah F. Conrad, from decree of O. C. Montgomery Co., March T., 1907, No. 5, dismissing exceptions to adjudication in Estate of Mary H. Thomas, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    •Exceptions to adjudication. See Conrad v. Conrad, ante, p. 154.
    The facts appear by the opinion of the Superior Court, and Conrad v. Conrad, ante, p. 154.

      Errors assigned were in dismissing exceptions to adjudication.

      Edwin S. Nyce, for appellant.

      Henry Freedley, for appellees.

      April 20, 1908:
   Opinion by

Rice, P. J.,

It is claimed that the question in the equity case was whether the court would cancel the agreement, while in this case the appellees stood in the position of asking the aid of the equity powers of the orphans’ court to enforce the agreement. Therefore, it is argued, the court erred in holding that the decree in the former case was conclusive of the questions arising in the orphans’ court, and in support of this contention we are referred to Lynch’s Appeal, 97 Pa. 349 — and other cases to the same effect — where it was said there is a “wide difference between the facts and circumstances necessary to move a chancellor to refuse the execution of a contract, and those necessary to induce him to rescind it. In the one case interposition will be refused on the ground of improvidence, surprise or even mere hardship; in the other a court will act only on the ground of fraud, illegality or mistake.” We deem it unnecessary to expend time and labor in discussing the question whether the orphans’ court would have been warranted in coming to a different conclusion from that reached by the equity court as to the validity and revocability of the agreement. For the testimony in the orphans’ court, so f'ar as it relates to these questions, was substantially the same, and in great part was the identical testimony that had been given in the equity case. Apart from the views expressed by the learned judge of the orphans’ court as to the effect of the decree in the equity case, his opinion shows that he reviewed the whole case, and upon such consideration reached the conclusion which is thus stated. “The opinion of the learned president judge of the common pleas, his findings of fact and conclusions of law, is adopted as the opinion of this court. The agreement is binding upon Alvah F. Conrad and there is nothing shown to move the conscience of a chancellor to set it aside for fraud, accident, mistake, undue influence,, or because of ignorance of his rights. Nor has anything been shown in equity and good conscience why its terms should not be specifically performed/’ We concur in this conclusion.

By the terms of the agreement the balance, which turned out to be $285.13, was to be divided equally between Thomas C. Conrad and Alvah F. Conrad. The orphans’ court deducted the costs in the equity case from this balance and awarded to each of these parties one-half of the remainder. Complaint is made that the costs of the equity case should not have been brought into this distribution. But we cannot see that the appellant has just cause of complaint. The effect was to relieve him of one-half of the costs''.

The decree is affirmed at the costs of the appellant.


text:
    Commonwealth v. Levine, Appellant.

      Summary conviction — Justice of the peace — Appeals from quarter sessions — V agrancy.

    On an appeal to the court of quarter sessions under the Act of April 17, 1876, P. L. 29, from a summary conviction for vagrancy before a police magistrate, the appellant is not required to prove that he did not have a fair and impartial hearing before the magistrate, before he will be permitted to prove that he is not guilty of the charge preferred against him.
    In cases of summary conviction the court of quarter sessions has discretionary power to allow or refuse an appeal. In determining whether or not it shall be allowed, the court may and should consider, amongst other things, the fact, if it be a fact, that the applicant for the appeal had an opportunity to fully and fairly present his case before the magistrate. But if the appeal has been duly allowed, and has not been vacated or dismissed upon cause shown, the parties are entitled to a hearing upon such relevant and material evidence pertaining to the charge as they produce, and to the judgment of the court based on the facts established thereby, and the law applicable to those facts. In short, to grant the appeal is discretionary, but to accord the parties such hearing, under the circumstances stated, is not discretionary, but demandable of right.
    Argued Dec. 10, 1907.
    Appeal, No. 130, April T., 1908, by defendant, from judgment of Q. S. Allegheny Co., April T., 1908, No. 130, affirming judgment of police magistrate in case of Commonwealth v. David Levine.
    Before Rice; P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Appeal from summary conviction for vagrancy.
    At the trial appellant proposed to prove by his parents and other witnesses the appellant is not a vagrant. That at the time of his arrest he resided at No. 1224 Clark street, Pittsburg, Pa., with his parents. That he has resided there with his parents for the past twenty years.
    That at the time of his arrest he was engaged in the produce business with his brother, Abe N..Levine, and J. Zidman, the name of the firm being the Charleroi Produce Company.
    That from April 3, 1903, until July 29, 1907, he was in partnership with one Harry Abel, in the shooting gallery business at No. 105 Grant street, in the city of Pittsburg, Pa.; that on July 29, 1907, he sold his interest in said business to his partner, Harry Abel, for the sum of $550, receiving $450 cash and a judgment bond from the said Harry Abel for $100, in payment for his said interest in said business.
    That on August 22, 1907, he was also engaged in the scrap iron business with one Harry Ruben, at No. 431 Second avenue, in the city of Pittsburg, Pa., the name of said firm being the Fort Pitt Junk Company, he owning a one-half interest in said business, and that prior to that time he had been engaged in the furniture business at the corner of Sixth avenue and Ross street, Pittsburg, Pá. That he had also been engaged in the flower business in the Fifth .Avenue Arcade Building in the city of Pittsburg, Pa.
    That at the time the appellant was in court for a hearing on his appeal he was compelled to employ a man to do his work as a partner of the Charleroi Produce Company.
    The court overruled the offer and affirmed the judgment of the magistrate.

      Errors assigned were (1) in overruling the offer of evidence and (2) in affirming the judgment.

      Lawrence B. Cook, for appellant. —
    An appeal allowed by the court of quarter sessions upon cause shown, should be heard by the court: Thompson v. Preston, 5 Pa. Superior Ct. 154; Commonwealth v. Hendley, 7 Pa. Superior Ct. 356.

      April 20, 1908:
    Where appellant after appeal has been allowed, offers to prove he has not had a fair and impartial hearing before the magistrate, it is the duty of the quarter sessions court to hear the evidence: Thompson v. Preston, 5 Pa. Superior Ct. 154.

      Leonard S. Levin, for appellee. —
    Appeals from a magistrate on summary conviction should not be allowed save for cause shown. The whole matter rests in the sound discretion of the court below, and an appeal to the Superior Court must be regarded as a substitute for a certiorari: Commonwealth v. Hendley, 7 Pa. Superior Ct. 356; McGuire v. Shenandoah, 109 Pa. 613; Com. v. Eichenberg, 140 Pa. 158.
   Opinion by

Rice, P. J.,

The Act of June 16, 1891, P. L. 303, applying to cities of the second class, provides that it “shall and may be lawful for any such police magistrate where vagrants may be found within the city in which such police magistrate resides or is appointed to commit such vagrants (being thereof legally convicted before him, on his own view or by confession of such offenders or by the oath or affirmation of one or more credible witnesses) to the workhouse of the county .... if such there be, otherwise to the common jail of such county, there to be kept at such hard labor .... for any time not less than thirty days nor more than six months.” It appears by the transcript of the magistrate that the defendant was charged with being a vagrant, and that after full hearing he was convicted and committed to the workhouse for thirty days. By special allowance of the court of quarter sessions, granted upon his petition, the defendant appealed from the conviction, and duly filed in that court a transcript of the proceedings before the magistrate and a copy of the commitment. The docket entries of the proceedings in the quarter sessions are very meager, but in addition to the foregoing there is the following: “October 3, 1907, judgment affirmed.” There is nothing in the record which expressly shows whether this judgment was based on a mere review of the proceedings sent up by the magistrate, or upon evidence produced on a hearing in court pursuant to the appeal. But it is apparent from the bill of exceptions sealed by the court, if we may consider it, as well as from the express concession of the city solicitor, who represented the commonwealth in the court below and here, that he maintained, and the court held, that it was incumbent on the defendant to prove that he did not have a fair and impartial hearing before the magistrate, before testimony as to the merits of the charge would be admissible. To show that we have not misunderstood counsel in this regard, we quote from his paper-book: “The court did not refuse, on October 3, 1907, to hear said case but demanded first, that appellant prove that he did not have a fair and impartial hearing before the magistrate before it would hear testimony de novo.” Again, in opening the argument in his printed brief we find the following: “There is only one question involved in this case, and that is, did appellant have an opportunity to fully and fairly present his case before the magistrate?” Further on he says: “The first orderly step is for the appellant to satisfy the court that he was denied a fair and impartial hearing before the magistrate. Failing to do this there is no reason for the court to again review the testimony as to the guilt or innocence of the defendant. In the case at bar there was no offer to show that appellant did not have a fair and impartial trial but instead an offer to show that he was not guilty of the charge preferred against him.”

It may be questioned whether an appeal to the quarter sessions, duly allowed, from a summary conviction upon the charge of vagrancy is such a criminal case as is comprehended in sec. 1 of the Act of May 19, 1874, P. L. 219, relative to bills of exceptions in criminal cases. But as counsel for the commonwealth does not raise objection to the manner in which the ruling of the court was brought upon the record, but clearly waives it by the concession and argument above referred to, we do not feel required to raise it, and to presume from a record so uncertain as we have above indicated, and contrary to the admitted fact, that the judgment affirming the judgment of the magistrate was entered after the defendant had had a hearing in court, or an opportunity to be heard, upon the question of his guilt or innocence. If in such a case the defendant has been accorded such hearing in the court of quarter sessions as the constitution and laws entitle him to, an appeal to this court will not give him a right to have the judgment of the quarter sessions reviewed on the evidence. He is entitled only to such review by the appellate court as was had by certiorari prior to the act giving the name “appeal” to all appellate proceedings: Thompson v. Preston, 5 Pa. Superior Ct. 154. But here there is no attempt to obtain a review by this court upon the merits; the complaint is that the defendant was condemned without such hearing as he was entitled to, and for the reasons above suggested we conclude that we would not be justified in refusing to consider that question.

The Act of April 17,1876, P. L. 29, which was passed to carry ■•into effect sec. 14, article V of the constitution,, provides, so far as material to be noticed here, as follows: “In all cases of summary conviction in this commonwealth before a magistrate or court' not of record, either party may, within five days after such conviction, appeal to the court of quarter sessions of the county .in which such magistrate shall reside, or court not of record, shall be held, upon allowance of the said court of quarter sessions, or any judge thereof upon cause shown; . . . . provided that all appeals from summary .... shall be upon such terms as to payment of costs, and entering bail, as the court or judge allowing the appeal shall direct.”

The clause of the constitution above referred to, which enlarges the right of appeal and secures it against infringement by future legislation, was adopted to remedy evils of considerable magnitude which had grown up under laws giving inferior magistrates and courts not of record the power to fine and imprison summarily. One of the evils was not that there was no mode whereby the court could review their proceedings for the purpose of ascertaining whether they had kept within the limits of their jurisdiction and had proceeded regularly; for there was such mode of review by certiorari prior to the adoption of the present constitution, which was preserved by sec. 10 of the same article. Hence, it is to be presumed that in thus enlarging the right of appeal the framers of the constitution had in view the correction of mischief for which the remedy by certiorari was not adequate, and intended to provide, within certain restrictions, a mode whereby not merely the fairness and impartiality of the hearing before the magistrate could be inquired into, and his errors of law, as shown by his record, could be corrected, but whereby the judgment of the court of quarter sessions upon the facts established by the evidence adduced in that tribunal could be had. . The mode provided is by an appeal, which the court has discretionary power to allow or refuse. In determining whether or not it shall be allowed, the court may and should consider, amongst other things, the fact, if it be a fact, that the applicant for the appeal had an opportunity to fully and fairly present his case before the magistrate. But if the appeal has been duly allowed, and has not been vacated or dismissed upon cause shown, the parties are entitled to a hearing upon such relevant and material evidence pertaining to the charge as they produce, and to the judgment of the court based on the facts established thereby, and the law applicable to those facts. In short, to grant the appeal is discretionary, but to accord the parties such hearing, under the circumstances stated, is not discretionary, but demandable of right. To hold otherwise than we have done would so narrow the remedy given by the constitution and the act passed to carry it into effect as to defeat, in great part, the purpose which the framers of the constitution and the legislature had in view. The argument that the foregoing construction requires the consumption of much time in the hearing of this class of petty cases is not convincing, even if the premises be conceded. But the time to consider and deterT mine whether there is such probable cause for the appeal as would justify the consumption of time in a retrial of the case in court, is before the appeal is allowed. If due care be exercised in that preliminary stage of the proceeding, the argument above referred to, will have little foundation in fact. On the other hand, to put on a defendant, who has been convicted by a magistrate and sentenced to imprisonment, the burden of showing in the quarter sessions, upon the hearing of his case, after an appeal has been duly allowed by that court, that the magistrate was guilty of unfairness and partiality, before evi’ dence of his innocence can be introduced, would, in many cases, work injustice. Unfairness and partiality of the magistrate are not the only grounds upon which a person so convicted may justly petition the court of quarter sessions for a hearing in that tribunal upon the question of his guilt or innocence. It appearing that the defendant has not had such hearing in the quarter sessions the case must be remitted to that court in order that it may be accorded.

The judgment is reversed and the record remitted to the court below with direction to hear the cause and to enter such judgment as the law and evidence require.


text:
    Jacoby v. Lehigh County, Appellant.

      Municipal contract — Contract—County commissioners — Plans and specifications for a building.

    In an action against a county to recover under an alleged contract of employment to prepare plans and specifications for a heat and power plant, it appeared that the plaintiffs, who were architects, were summoned in some way to the county commissioner’s office when the commissioners were all present at their regular meeting. The plaintiffs testified that at this meeting they suggested a preliminary plan, and that two of the commissioners gave specific directions for them to proceed with its preparation. The other commissioner although present said nothing. At a second regular meeting a week afterwards the same two commissioners who had previously acted passed upon a preliminary plan which was submitted, and authorized the preparation of a detailed plan and specifications which could be submitted to bidders, and such plan and specifications were prepared. This testimony was denied in some essential particulars by the commissioners, although even from the testimony of the commissioners it could be deduced that a plan and estimate were ordered by them from the plaintiffs. No entry of the transaction was made in the minutes kept by the clerk of the commissioners. Held, (1) that the case was for the jury, and that a judgment and verdict for the plaintiffs should be sustained; and (2) that the fact that no record of the transaction appeared in the books of the commissioners did not preclude the plaintiffs from establishing the contract by other proof.

      April 20, 1908:
    Argued March 11, 1908.
    Appeal, No. 156, Oct. T., 1907, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1906, No. 73, on verdict for plaintiffs in case of L. S. Jacoby and S. A. Weishample, trading as Jacoby, Weishample & Biggin, v. Lehigh County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver,. JJ.
    Affirmed.
    Assumpsit on a contract of employment. Before Trexler, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $555. Defendant appealed.

      Error assigned was in entering judgment for the plaintiffs on the verdict, and in not entering judgment for defendant non obstante veredicto.

      Francis G. Lewis and Thos. F. Diefenderfer, for appellants. — ■
    The commissioners did not meet and act as a board: Cooper v. Lampeter Twp., 8 Watts, 125; Somerset Twp. v. Parson, 105 Pa. 360; Penna. R. R. Co. v. Montgomery County Pass Ry. Co., 167 Pa. 62; Austin Mfg. Co. v. Ayr Twp., 24 Pa. Superior Ct. 91; Logan v. Rochester Twp., 21 Pa. Superior Ct. 113.

      Fred G. W. Funk, with him W. La Monte Gillette, for appellee.
    ■ — The appellants cite nothing but township and railroad cases as authority, and they have no application. The law as to counties is as follows: “A contract made by county commissioners within the scope of their authority is binding on the county, although not made at their office. Two commissioners have power to make a contract if made in their capacity as commissioners:” Jefferson County v. Slagle, 66 Pa. 202.
   Opinion by

Beaver, J.,

The trial in the court below resulted in a verdict for plaintiffs, upon which, on a motion for judgment n. o. v., judgment was entered.

The only error assigned is the refusal of the court to enter ■judgment for the defendant n. o. v. It is only necessary for us, therefore, to inquire whether or not there was evidence to go to'the jury, upon which the verdict could be justified.

It is practically undisputed that the plaintiffs, who were architects, were summoned in some way to the commissioners’ office of the county. The Commissioners were all present. It was their regular meeting day. In consequence of what transpired there, the plaintiffs prepared plans and specifications for a heat and power plant, from which the county buildings were intended to be heated, lighted and ventilated. These plans were submitted to the commissioners and retained by them. At the first meeting, the plaintiffs claim that they suggested a preliminary plan and that two of the commissioners gave specific directions for them to proceed with its preparation. The other commissioner, although present, said nothing. A week thereafter, at a second regular meeting of the board of commissioners, a preliminary plan was submitted, and as claimed by the plaintiffs, the same two commissioners who had directed the preliminary plan to be prepared, authorized the preparation, of a detailed plan and specifications which could be submitted to bidders and that, in pursuance of their directions, the plans were so prepared after careful examination and measurements.

It is not denied, as we understand* the defendant’s testimony, that the question of the erection of such a plant as was proposed had been discussed by them and that the plaintiffs were summoned for the purpose of giving expert advice in regard thereto. One of the plaintiffs and a disinterested witness in their employ testified distinctly in the main as outlined above. If their testimony was believed, the jury had a basis of fact upon which to found their verdict.

Their testimony, in essential particulars, is denied by the commissioners. It is to be remarked that the commissioner, who seemed to act as the principal spokesman of the board, was not called by the defendant as a witness. One of the other commissioners, Shimer, who was called, had a very indistinct recollection of what did occur and was contradictory in his answers to the question as to whether or not he had been present when the plaintiffs were consulted and submitted their plans. In answer to the question “You saw Mr. Jacoby there and you didn’t see him there, you say, which is correct?” he said, “I say I remember seeing Mr. Jacoby there at one time and that is the time I said about no money being here, and that I was against a thing of this kind.” In answer to the subsequent question, on cross-examination, “If Messrs. Jacoby and Weishampel had presented a bill for $50.00, you would think the county should have paid for the services they had rendered?” he said, “Oh, I should think so.” Guth, the other commissioner, while admitting that he saw plaintiffs in the.office at different times and saw them at one time making measurements, said, in answer to the question by. counsel for defendant, “Did you see that they were there sometimes?” “Yes, sometimes. I walked out and they talked all English and I am pretty hard of hearing and I did not concern myself.” ■

The commissioner first mentioned was called by the plaintiffs on rebuttal. His recollection was different from that of the other two. His testimony also differed from that of the plaintiffs in some important particulars, denying that detailed plans and specifications had been regularly ordered by the commissioners. In the cross-examination 'of this witness, called by the plaintiffs, he testified: “Q. Now, but isn’t it a fact that whatever directions were given as to preliminary plans or otherwise, you yourself told these people to do.it? A. W,e all did; we all knew what was going on, Guth and Shimer; too. . Q. Had you told them what was going on? A. Most undoubtedly I told thém, for that they asked me and they knew it. Q. You never told them to make plans and specifications, but only a rough estimate? A. Yes, that is all, only a rough estimate.” ,

It will thus be seen that the case was peculiarly one for a jury, provided upon a consideration of the whole case, there was anything to be submitted for its finding. This raises the question as to whether or not there had been such deliberation on the part of the commissioners and such an employment by the plaintiffs as authorized the furnishing of the plans.and specifications, for which a recovery is here sought.

By the nineteenth section of the Act of April 15,1834, P. L. 537, it is expressly provided that “Two of the commissioners aforesaid shall form a board for the transaction of business, and when convened in pursuance of notice or according to adjournment, shall be competent to perform all and singular the duties appertaining to the office of county commissioners.”

There is testimony here from which the jury could have found that all of the commissioners were present, assenting to the arrangement to which the plaintiff’s witnesses testified, and that two of them gave express directions in regard to the preparation of the plans and specifications. The commissioners, as appears from all the testimony, had consulted together in regard to the desirability of the establishment of a heating and lighting plant and had agreed that it was desirable, if the cost was not too great. . It became necessary, in order to ascertain the cost, to have at least a plan and estimate prepared. It is not difficult, even from the testimony of the commissioners, themselves, to determine that such a-plan and estimate were ordered by them, which were furnished by the plaintiffs.

In Jefferson County v. Slagle, 66 Pa. 202, it was held that “A contract made by county commissioners, within the scope of their authority, is binding on the county, although not made at their office,” and that “Two commissioners have power to make a contract, if made in their capacity as commissioners.”

Assuming that Guth, one of the commissioners, did not give specific directions nor assent to those which were given by the other two commissioners, as testified to by the plaintiffs, we think the case necessarily went to the jury upon all the testimony.

No entry of the transaction seems to have been made in the minutes kept by the clerk of the commissioners. It would have been more satisfactory, if such a minute had been made. The plaintiffs, however, 'had no control over this and it would be a dangerous doctrine to establish that, because the commissioners, for any reason, neglected to place upon their minutes the record of a contract which had been made by them, that no such contract could, therefore, be established by other proof.

Upon a consideration of the whole case, we think the court properly submitted it to the jury. There is no complaint as to anything which occurred during the trial or as to the manner of its submission. The motion for judgment n. o. v. was, as we view it, properly refused.

Judgment affirmed.


author: Morrison, J.,

text:
    Commonwealth v. Volquarts, Appellant.

      Appeals — Assignments of error — Instructions—Charge.
    An assignment of error relating to the admission of evidence will not be considered, where the evidence is not given in connection with the assignment, nor any reference given as to where it may be found.
    A single assignment of error complaining of the action of the court in refusing to affirm two separate and distinct points, is in flat violation of the rules and will not be considered.
    An assignment of error to an answer to a point will not be considered where the answer is not set forth in the assignment.
    An assignment of error is in proper form which reads: “The charge of the court is inadequate in failing to define to the jury the nature and character of the crime charged in the indictment, and the proofs required for sustaining the same.”

      Criminal law — Conspiracy—Evidence—Construction.
    On the trial of an indictment for conspiring to cheat and defraud the prosecutor out of the ownership and possession of certain stock, where there is evidence that the prosecutor recognized the right of the defendants to the stock, settled with them and took their money, it is reversible error for the trial judge to say to the jury that it was not for the jury to consider whether the defendants had a right to retain the stocks, because that was a question for the civil courts.
    Argued March 9,1908.
    Appeals, Nos. 177 and 178, April T., 1908, by defendants, from judgment of Q. S. Allegheny Co., Oct. T., 1907, No. 439, on verdict of guilty in case of Commonwealth v. Fred Volquarts and W. P. Lemley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for conspiracy. Before Carnahan, J.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    2. The court erred in that part of its charge to the jury which is in the following language, to wit: ■
    The charge is conspiracy, and there is a great deal of difference between the trial of such a case, as respects the disposition of property, in this court, the criminal court, and in a civil court. The question here is not whether they were justified in doing what they did, not whether they were acting within their rights. These are questions for the civil courts to determine. The question with you is, did they falsely and maliciously conspire to cheat this man, knowing that they were doing wrong. That is your question. Now, as to whether they had a right to retain this stock or whether they did not have a right to retain it is not a question for you to consider at all, for that is a question for civil courts. As I say, the crime here consists of having falsely and maliciously conspired together, agreed together, to cheat this man. Now, I call your attention to this difference, because it is a most important factor to consider when you determine this case, and you must recollect that you are not passing upon the question whether they acted within their rights but whether they deliberately and maliciously agreed among themselves to cheat the other man.
    3. The court erred in charging on the indictment wherein the corpus delicti was the alleged conspiring to cheat and defraud the prosecutor of certain stock, or the value thereof, in using the following-language in respect thereto:
    Whether they were justified or not is not the question; but the question is whether they honestly believed they had a right to retain the 2,000 shares or did retain them under that honest belief. That is the question for you. Now, as a matter of fact, Mr. Sulzner, so far as his actions are concerned on that day, acquiesced in their claim. That is, when they tendered him the money for each of those thousand shares of stock, which they claimed they had bought several weeks before, which were not delivered, and which they had a chance now to retain out of those 4,000 shares, he acknowledged that they had him; that, in other words, these boys must have been acting as his agents, and, at any rate, he accepted the money for those 2,000 shares and gave receipts for them. His explanation of that is that he was so confused and rattled he didn’t know what he was doing and he was not responsible for what he did, and from intimations from counsel, it would appear that the commonwealth claims that some undue advantage was taken of him and he should have been given an opportunity to send for counsel to advise.
    Now, gentlemen of the jury, of course he could have sent for counsel; he could have taken the position that he would do nothing until he did advise with counsel, and he had a perfect right to send for counsel. There is no evidence that he even suggested sending for counsel. He signed the receipts, accepted the money, and, furthermore, gave an order for the sale of the balance of the 4,000 shares, consisting of 2,000 shares. These facts are admitted. And it is evidenced right on paper that he accepted the money for the 2,000 shares and gave an order for the sale of the 2,000 shares. His explanation is that he was so disgusted and rattled that he didn’t know what he was doing. Afterwards, he repudiated the transaction, and, I think, perhaps, tendered this money back (I am not quite certain about it), but it wasn’t accepted. Now, gentlemen of the jury, all these matters are to be considered when you come to determine whether these parties falsely and maliciously conspired to cheat. If they did, if they knew they were wrong about it, that it was simply a trumped-up arrangement there to keep this stock, now that they had the opportunity to retain it; they were not acting honestly about it, and they agreed among themselves to do it, not each one acting independently, but 'agreeing -and conspiring among themselves so to do, then they are- guilty of a conspiracy as charged.
    4. The court erred in failing to charge the jury that if the defendants had a right to retain the stock in question, there could be no conviction.
    5. The court erred in refusing the following points of the defendants:
    That under all the testimony, there is nothing to disclose that the defendants agreed to conspire, and did conspire, to cheat and defraud Joseph L. Sulzner.

      April 20, 1908:
    4. That under all the evidence, the verdict should be not guilty.
    6. The charge of the court was inadequate in failing to define to the jury the nature and character of the crime charged in the indictment, and the proofs required to sustain the same.

      L. S. Levin and Charles A. O’Brien, for appellants.

      Harvey A. Miller, with him H. L. Goehring, district attorney, for appellee.
   Opinion by

Morrison, J.,

The defendants were jointly tried under an indictment containing three counts, the first of which charged unlawful conspiracy and confederation to cheat and defraud Joseph F. Sulzner of his goods, moneys, chattels and other property; second, with having falsely and maliciously conspired, combined, confederated and agreed to cheat and defraud the said Joseph F. Sulzner out of the sum of $1,977.50 lawful money; third, with conspiring and confederating to cheat and defraud the said Joseph F. Sulzner out of the ownership and possession of certain stocks, to wit: 4,000 shares of stock of the Gold Bullion Mining .& Development Company, a corporation organized and existing under the laws of the state of Arizona. The indictment was drawn under section 128 of the crimes Act of March 31, 1860, P. L. 382 (see p. 413).

It will be noted that the defendants were not charged with an unlawful conspiracy and confederation to accomplish a lawful purpose. Therefore it was of vital importance whether the defendants were seeking to defraud the prosecutor, or to secure the stock which they alleged lawfully belonged to them. The evidence of conspiracy was not strong and we think there is clear error in the charge of the court as raised by the second assignment.

There is considerable evidence that the defendants were trying to get the prosecutor to recognize their title to the stock in question, a part of which each defendant claimed to have purchased of certain persons claiming to be agents of the owner, the prosecutor. The latter met the defendants on July 16, 1907, and recognized their claims and made a settlement with them and received money from each and signed an order authorizing the sale of the balance of the stock which the prosecutor claimed, and thereafter this prosecution was commenced and carried on till the defendants were convicted and sentenced.

The first assignment of error is in flat violation of the rules of this court and it cannot be considered. It relates to the admission of evidence which is not quoted in connection with the assignment, nor is there any reference to where it may be found.

We regard the language used by the court in the second assignment as clearly erroneous. The learned court said: “The question here is not whether they were justified in doing what they did, nor whether they were acting within their rights. These are questions for the civil courts to determine. The question with you is, did they falsely and maliciously conspire to cheat this man, knowing that they were doing wrong? That is your question. Now, as to whether they had a right to retain this stock or whether they did not have a right to retain it is not a question for you to consider at all, for that is a question for civil courts.”

Bearing in mind that the defendants were only indicted for conspiracy and confederation to cheat and defraud, we cannot agree with the learned court that it was not important whether.they had a right to retain the stock. If they had such right, and the jury could have found that question in their favor, because the prosecutor recognized the right and settled with them and took their money, then we fail to see how they could be convicted of an unlawful conspiracy to cheat and defraud the prosecutor. While the portion of the charge quoted in the third assignment may be open to criticism, yet we are not prepared to say it contains reversible error and, therefore, it is not sustained.

The fourth assignment is not in accordance with our rules and it is not sustained. The fifth assignment complains of the court in refusing to affirm two separate and distinct points. This is in flat violation of the rule and it has been so often decided by the Supreme Court and this court that it seems a waste of time to cite authorities. In Sloan v. James, 13 Pa. Superior Ct. 399, we said: “The fifteenth and sixteenth specifications offend against rule XV., in that they each embrace more than one point, and specify the failure of the court to find in accordance with two distinct requests for findings of fact upon the part of the defendants, and said specifications are not to be considered.” In addition to this, the answers of the court to the points quoted in the fifth assignment are not given and we cannot find from the record that the points referred to were presented to the court at all. The charge makes no reference to any points. The appellants’ paper-book contains six paragraphs, entitled: “Defendants’ Points,” signed L. S. Levin, attorney for defendants, but they are not in the form of points presented to the court for instructions, nor does it appear that they were so presented. They seem to be the attorney’s criticisms or exceptions prepared after the trial and verdict and we cannot see that they form any part of the record.

The sixth assignment reads: “The charge of the court was inadequate in failing to define to the jury the nature and character of the crime charged in the indictment and the proofs required to sustain the same.” We regard the charge, as a whole, inadequate and insufficient, under the evidence in the case, and we are forced to the conclusion that the rights of the defendants were not properly protected. That this assignment is in proper form seems to be sustained by Tietz v. Phila. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181.

We have already indicated that, in our opinion, if the defendants purchased a part of the stock in question from agents of the prosecutor, and he recognized the sales and settled with the defendants on July 16, 1907, and received the balances due on the stock sold to the defendants, and signed an order authorizing the defendants to sell the other stock which was under consideration at the time, then the jury ought to have been instructed to acquit the defendants. If the defendants were only seeking to settle a business transaction, and pay for and secure the stock which they had previously purchased, we cannot see how they could have- been convicted of conspiracy to cheat and defraud. But we are not prepared to say that the case was not for a jury under proper instructions.

In Com. v. Spencer, 6 Pa. Superior Ct. 256, we held, quoting Com. v. Gillespie, 7 S. & R. 469, that: “It must be recollected that conspiracy is a matter of inference, deducible from the acts of the parties accused, done in pursuance of an apparent criminal purpose, in common between them, and which rarely are confined to one place, and if the parties are linked in one community of design and of interest, there can be no good reason why both may not be tried where one distinct overt act is committed, for he who procures another to commit a misdemeanor is guilty of the fact, in whatever place it is committed by the procurer.”

We sustain the second and sixth assignments, and reverse the judgment with a venire facias de novo.


author: Per Curiam,

text:
    Scranton City v. Tatarunas, Appellant.

      Criminal law — Gambling house — Summary conviction — Municipal ordinance — Constitutional law.

    A city ordinance declared it unlawful “for any person either as proprietor, lessee, agent or employee to conduct games played for money or other things of value,” and provided a penalty of fine or imprisonment for a violation of the ordinance. Under this ordinance a summary conviction was sustained by the court below against a licensed saloon-keeper who permitted men to play cards for drinks in his barroom, and personally served the drinks. It was claimed that the ordinance was unconstitutional. The case was heard on -appeal by six judges who upon the general question whether the judgment should be affirmed or reversed were equally divided in opinion. The judgment of conviction was, therefore, affirmed.
    Argued March 5, 1908.
    Appeal, No. 40, March T., 1908, by defendant, from order of C. P. Lackawanna Co., March T., 1907, No. 992, dismissing exceptions to record of summary conviction in case of Scranton City y, Michael Tatarunas,

      Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Certiorari to summary conviction.
    The record of the magistrate was as follows:
    Warrant issued March 15, 1907, on the information of John Davis, lieutenant of police, defendant charged with violation of sec. 3 of the ordinance file of select council, No. 47, 1904, entitled “an ordinance prohibiting the operation of gambling houses in the City of Scranton, the frequenting of the same and providing penalties therefor. ” Secs. 3 and 6 of said ordinance reading as follows: “Sec. 3. It shall be unlawful for any person either as proprietor, lessee, agent, or employee to conduct games played for money or other thing of value, or sell policies, and upon arrest and conviction shall be fined or imprisoned as hereinafter provided. Sec. 6. Any person acting as proprietor, lessee, agent or employee, who is conducting any game for money or other thing of value or selling policies, may be arrested by warrant or upon view by any regular police officer of the city and taken before the mayor or any police magistrate of the city, and upon conviction shall be fined not less than twenty-five ($25.00) dollars nor more than two hundred ($200.00) dollars, and in default of the payment of the same may be imprisoned in the jail of Lackawanna County for a period not exceeding thirty days.”
    Said offense was committed at 2103 Jackson street, city of Scranton, Lackawanna county, Pennsylvania, in the manner following, to wit: That the said defendant was the proprietor of a hotel at 2103 Jackson street in said city of Scranton and in said hotel on March 15,1907, games were played for money.
    Now, March 15, 1907, defendant brought up ' and being charged as aforesaid pleads “not guilty.” Robert Armstrong, patrolman, sworn, said in substance, that on March 15, 1907, he went to 2103 Jackson street, Scranton, aforesaid, and there saw three persons, to wit: Andrew Mark, James Vanatiskie and George Smith attired in mining clothes, playing games with cards and passing money one to the other. He found twenty cents on the table in front of George Smith, fifty-five cents in front of James Vanatiskie. The defendant, Michael Tatarunas, was present attending to the bar in said room in said hotel and serving drinks to the men named.
    Ben Gilbert, patrolman, sworn, corroborated. Michael Tatarunas, the defendant, sworn, said the three men named were playing cards for the drinks only and that he had no part in the game.
    James Vanatiskie and Andrew Mark sworn, corroborated Michael Tatarunas.
    “ Now, March 15,1907, after hearing as aforesaid, I find the defendant guilty as charged, to wit.: that he did violate sec. 3 of ordinance of the city of Scranton. No. 47 file of select council, year 1904, by conducting a game played for money in his hotel at 2103 Jackson street, city of Scranton aforesaid and for said offense I fine him the sum of $100 to be paid to the use of the city of Scranton and in default thereof he is to stand committed to the common jail of Lackawanna county for a period of thirty-days. Now March 15, 1907, writ of certiorari received from the court of common pleas of Lackawanna county.

      “ I certify that the above is a correct copy of the proceedings had • before me in the above-entitled case. Witness my hand and seal this third of May, 1907.”
    The defendant alleged that the conviction was improper, as the ordinance was unconstitutional, depriving him of trial by jury, being oppressive in character and an unreasonable exercise of the police power. He also alleged that the evidence did not show that he had violated the ordinance.
    Defendant’s exceptions were dismissed.

      Error assigned was in dismissing defendant’s exceptions.

      George W. Maxey, for appellant,
    cited: White’s Constitution of Pennsylvania, p. 67; Van Swartow v. Com., 24 Pa. 131; Byers v. Com., 42 Pa. 89; Northern Liberties v. Gas Co., 12 Pa. 318; Crader v. Com., 4 Pa. Dist. Rep. 731; Com. v. Borden, 61 Pa. 272.

      ■H. R. Van Deusen, assistant city solicitor, with him David J. Davis, city solicitor, for appellee,
    cited: Van Swartow v. Com., 24 Pa. 131; Com. v. Andrews, 24 Pa. Superior Ct. 571; State v. Crummey, 17 Minn. 72; Greenville v. Kemmis, 58 S. C. 427; Greenwood v. State, 65 Tenn. 567; Robbins v. People, 95 Ill. 175.
    April 20, 1908:
   Per Curiam,

Upon the general question whether this judgment should be affirmed or' reversed the six judges who heard the case are equally divided in opinion. Therefore the judgment is affirmed.


text:
    Scranton Trust Company, Appellant, v. Hartshorn.

      Evidence — Writings—Books of original entry — Ledger—Destruction of old books.

    A new ledger, opened with the total balance merely of each customer's indebtedness, as shown by the old ledger, is not admissible in evidence after the destruction by fire of the books of original entry and the old ledger, where no witness is produced who is able to say that the lumping charges either in the old ledger, or in the new ledger were composed of items known to him to have been furnished to the persons sought to be charged.
    Argued March 6, 1908.
    Appeal, No. 60, March'T., 1908, by plaintiff, from order of C. P. Lackawanna Co., May T., 1905, No. 862, refusing to take off nonsuit in case of Scranton Trust Company, Administrator d. b. n. c. t. a. of the Estate of Ambrose Mulley, deceased, v. Thomas Hartshorn.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.

    Affirmed.
    Assumpsit for goods sold and delivered. Before Newcomb, J.
    The facts appear by the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off. : . ■

      Errors assigned were in refusing to admit in evidence the ledger referred to in the opinion of the Superior Court, and- in refusing to take off nonsuit.

      April 20, 1908:

      George D. Taylor, for appellant,
    cited: Nichols v. Haynes, 78 Pa. 174; McCrady v. Jones, 36 S. Car. 136; Rigby v. Logan, 45 S. Car. 651.

      A. A. Vosburg, of Vosburg & Dawson, with him John J. Owens, Jr., for appellee,
    cited: Hoover v. Gehr, 62 Pa. 136; Huston’s Est., 167 Pa. 217; Breinig v. Meitzler, 23 Pa. 156; Forsythe v. Norcross, 5 Watts, 432; Corr v. Sellers, 100 Pa. 169; Cutbush v. Gilbert, 4 S. & R. 551; Adams v. Steamboat Co., 3 Wharton, 75; Walter v. Bollman, 8 Watts, 544; Fairchild v. Dennison, 4 Watts, 258.
   Opinion by

Rice, P. J.,

After the death of Ambrose Mulley, who had a large retail store and conducted a large credit business, his executor carried on the business, employing a system of bookkeeping which is thus described by the plaintiff’s witnesses: Each clerk had a book in which leaves were placed each morning; when a customer made a purchase on credit his name and the items and prices of his purchase were entered on one of these-leaves; at night these loose sheets were taken out and bound together; and at the end of the month these were arranged chronologically in what was called a posting binder, making a sort- of a book, and filed away. This, it was conceded by both parties, was the book of original entries.

Each morning the bookkeeper took the sheets above referred to and posted therefrom into the ledger under the customer’s name, the date, the page of the loose leaf journal, so called, and the total amount of the purchases of the preceding day, but not. the items specifying the goods and the prices of each. of them. When payments on account were made, the credits were transferred from a book in which they were kept, to this ledger, and at the end of the year a balance was struck. On December 1, 1902, a new ledger was opened in which the. total balance, merely, of each customer’s indebtedness, as shown by the old ledgers, was entered.

In 1903 all of the books above referred to, excepting the new ledger, were destroyed by fire, and in 1905 this action was brought for goods alleged to have been sold and delivered to the defendant prior to December 1, 1902. Upon the trial of the case, the bookkeeper, who made the entries in the old ledgers and the new ledger opened in 1902, having testified to their correctness but admitting that he could not testify from his own knowledge as to the correctness of the entries made by the clerks on the loose sheets (which as we have seen constituted the book of original entries), and the destruction of the other books having been proved, the plaintiff' offered the new ledger opened in 1902 as evidence of the alleged indebtedness of the defendant for which this action was brought. The learned trial judge rejected the offer, and, no other competent evidence of the indebtedness being offered, entered a compulsory nonsuit. In his opinion refusing to take off the nonsuit, he discussed the question of evidence above raised, and concluded that the book was not admissible either as a book of original entries or as secondary evidence. We concur with him in both conclusions. The book does not purport to contain a copy or the substance of the entries in the book of original entries, which was destroyed; nor was any witness produced who was able to say that the lumping charges either in the old ledgers or in the new ledger were composed of items known to him to have been furnished to the defendant, as was the case in Nichols v. Haynes, 78 Pa. 174. As we view it, the plaintiff’s case rests solely upon the proposition that the book itself was evidence of the sale and delivery of goods to the defendant and of the balance due from him therefor. We are all of opinion that the proposition cannot be sustained either on principle or authority. Even the two South Carolina cases — McCrady v. Jones, 36 S. Car. 136; Rigby v. Logan, 45 S. Car. 651 — cited by the appellant’s counsel, do not go as far as would be necessary in order to hold that the book was admissible under, the facts stated. The argument ab inconvenienti is quite as strong against the establishment of a rule, under which hearsay so remote from the transaction would be admissible, as it is in its favor.

The judgment is affirmed.