author: Henderson, J.,

text:
    International Savings & Trust Company, Receiver, Appellant, v. Tillotson.

      Insurance — Mutual insurance — By-laws—Forfeiture of policy.

    Where a by-law of a mutual insurance company provides that if the insured neglects or refuses to pay his loss dues within the time specified in his notice, his policy shall become null and void, a failure to pay does, not ipso facto render the policy void. The provision is for the protection of the company, and if the company does not choose to enforce the forfeiture, the policy continues in force against the member.
    Argued May 17, 1907.
    Appeal, No. 56, April T., 1907, by plaintiff, from judgment of C. P. Mercer Co., Oct. T., 1904, No. 94, on verdict for defendant in case of International Savings & Trust Company, Receiver of the Duquesne Mutual Casualty & Indemnity Company, v. N. E. Tillotson.
    Before Rice, P. J., Hendbbson, Oblady, Head and Beaveb, JJ.
    Reversed.
    Assumpsit to collect an assessment on a policy of mutual insurance. Before Williams, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $59.40. Plaintiff appealed.

      Error assigned was in answering plaintiff’s point which was as follows:
    That under all the evidence, the verdict should be for the plaintiff for the full amount set out in the affidavit of claim.
      Answer: Refused, Under the instructions already given you, this point is refused, and inasmuch as it has been conceded that the defendant is liable to the plaintiff company for his share of the expenses of the plaintiff company as fixed by the assessment made by the receiver during the term of his membership, we instruct you to find a verdict in favor of the plaintiff for the sum of $54.88, and to that add interest from July 1, 1904, and for the gross amount you will return a verdict in favor of the plaintiff.
    October 7, 1907:

      (I. K. Wright, of Alter Wright, with him II. L. Keck, for appellant.
    This case is ruled by International Savings & Trust Co. v. Kleber, 29 Pa. Superior Ct. 200; International Savings & Trust Co. v. Steuger, 31 Pa. Superior Ct. 294.

      W. 0. Pettit, for appellee.
   Opinion bv

Henderson, J.,

The Duquesne Mutual Protective & Detective Association Against Theft was incorporated in 1898, and engaged in business as a mutual insurance company until September 1, 1903, at which time an amendment of the charter was approved by the governor in which the name of the company was changed to Duquesne Mutual Casualty & Indemnity Company, under which name it continued to do business until March 25, 1904, when a receiver was appointed by the court of common pleas, No. 1, of Allegheny county, on a bill filed alleging the insolvency of the company. The defendant made an application for, and took out, a policy of insurance on December 5, 1901. In March following an assessment was levied by the company on the policy holders. The defendant did not pay this assessment. On May 7, 1904, the court which appointed the receiver made an order for an assessment on all policy holders to meet the indebtedness of the company. This action was brought to recover the assessment charged against the defendant. The court refused judgment for want of a sufficient affidavit of defense to which action an exception was taken and the case proceeded to trial, and a verdict for the plaintiff for a less amount than was claimed. Two defenses were presented in the affidavit of defense : (a) that the policy was procured by misrepresentation on the part of the agent; and (b) that when the defendant received notice of the assessment made in March, 1902, he “ decided not to pay said dues, and did not do so. That about two months afterwards he received another notice for the same amount of dues, but paid no attention to the same,” and that by reason of his omission to pay his policy became null and void in accordance with the provisions of see. 5 of article 4 of the by-laws of the company. On the rule for judgment the court held that the first defense was not available, but that under the second the defendant could only be held liable for assessments due within thirty days from the time the assessment which the defendant declined to pay was made, another by-law allowing thirty days after notice for payment of assessments. The same defense was set up at the trial of the cause, in which the jury was instructed that the membership of the defendant in the company terminated on April 1, 1902, by reason of his refusal to pay the assessment referred to and the operation, of the above stated by-law of the company. The same question was, therefore, presented on the rule for judgment that arose at the trial, and as there were no disputed questions of fact that became one of law. The by-law on which the defendant relies provides that if the insured neglect or refuse to pay his loss dues within the time specified in his notice his policy shall become null and void, and all money paid by such member shall be forfeited to the association. , Another by-law was relied upon at the trial as relieving the defendant. It is the first paragraph of “ Provisions and agreements,” which provides that “ A non-payment on the due-date forfeits all benefits, rights and claims hereunder, and cancels policy, without the release of any liabilities then existing.” This provision is contained in a form of policy marked exhibit “ B ” in the bill filed in the court of common pleas of Allegheny county in the proceeding in which the receiver was appointed. A copy of that bill and the exhibits was attached to the plaintiff’s declaration in this case. It there appears that these “ provisions and agreements ” are embodied in a form of policy that was used after the reorganization of the company in 1903. It is not alleged to be a part of the defendant’s contract with the company, and does not appear to be so in the copy of the bill and exhibits attached to the plaintiff’s declaration. The purpose of attaching the copy of the proceedings in Allegheny county to the declaration was evidently to malee apparent to the defendant, his counsel and the court the basis of the plaintiff’s claim, but it does not in any way connect the defendant with exhibit'“B” in the equity proceedings. It is, moreover, admitted that an erasure line was drawn over a considerable part of this exhibit, although it did not extend to the end of the form of policy there set •forth. The contract with the defendant is plainly set forth in exhibit “ A ” attached to the bill in equity, the form of policy presented in that exhibit having been used as a copy of the defendant’s contract apparently to avoid a multiplication of exhibits. It sufficiently appears that exhibit “ A ” of the bill in equity is a copy of the contract on which the plaintiff claims, and that exhibit “B ” is a form of policj’- adopted after the change of name of the company in 1903, and, therefore, more than a year after the defendant’s obligation arose. Turning, then, to by-law No. 5 of sec. 4 of the contract sued upon, the inquiry is whether the mere neglect of the insured to pay an assessment upon notice effects an extinguishment of the policy. This provision of the by-laws was not made in the interest of the insured, but for the protection of the company. It did not enable the defendant to refuse to perform his contract and then set up his own default to effect a forfeiture. His failure to pay did not ipso facto render the policy void. The company was not bound to enforce a forfeiture, and nothing is presented in the affidavit of defense, nor appeared at the trial, from which it might reasonably be inferred that the company treated the policy as void. The affidavit of defense contains an admission that about two months after the notice of assessment was sent the defendant received another notice of the same amount of dues, but paid no attention to the same. The company was then evidently asserting its rights under the contract, and it does not appear that it at any time assumed a different attitude. The defendant was a member of a mutual company, and bound to his associates in the discharge of their mutual obligations. He may have lost his right to recover from the company by his default in making payment of his assessment, but it does not follow that the company is deprived of its right to enforce his obligation : Stockley v. Hartley Bros., 12 Pa. Superior Ct. 628 ; International Savings & Trust Co. v. Stenger, 31 Pa. Superior Ct. 294; Susquehanna Mut. Fire Ins. Co. v. Leavy, 136 Pa. 499. There is a mode afforded by which the defendant could have withdrawn from the association and surrendered his policy. Paragraph 15 of the “ conditions and agreements ” of the policy provides that the insured may withdraw from the company by giving five days’ notice of his intention so to do, by surrendering his policy and by paying all his indebtedness due to the association. This provision is in the interest of the insured, and when taken advantage of releases him from responsibility for future assessments. When we read this condition in connection with sec. 5 of the by-laws it becomes clear that the latter regulation was for the protection of the company and the former for the relief of the insured. Each might claim the right which the respective provisions assured him, but it does not appear that this was done. The defendant has not presented a defense peculiar to himself which relieves him from the assessment made by order of the court of common pleas of Allegheny county. We think the case is ruled by Stockley v. Hartley Bros., 12 Pa. Superior Ct. 628, and International Savings & Trust Co. v. Stenger, 31 Pa. Superior Ct. 294. It follows that judgment should have been entered in favor of the plaintiff on the rule for judgment for want of a sufficient affidavit of defense.

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


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Reznor Hotel Company’s License.

      Liquor law — Buie of court — Additional petitions and remonstrances— Act of May 13,1887, P. L. 108.
    A rule of court which provides that all additional petitions and remonstrances in liquor cases shall be filed on or before the first day of the term at which the application is to be heard, and gives the parties a period of three weeks after the original petition is filed within which to circulate and file the additional petitions, deprives neither applicant nor remonstrant of any statutory right, and is not so plainly an abridgment of that right as to justify us in declaring it invalid upon that ground or the ground of unreasonableness.
    The refusal of an application for a retail liquor license, after full hearing and consideration of all the matters that the court may consider, because in the opinion of the court it is not necessary for the accommodation of the public and the entertainment of strangers or travelers, does not make the question of necessity res judicata upon the hearing of the application of the same person for the same premises in a subsequent year. The granting or refusal of the license in previous years is not conclusive, and, under some circumstances, it ought to have but little, if any, weight in the determination of the application before the court; but in the exercise of a sound judicial discretion the court may consider it in connection with the other relevant facts established at the hearing or known to the court, particularly if the conditions be unchanged.
    The words “due regard” in the Act of May 13, 1887, P. L. 108, means such regard as the circumstances of the case demand, and these circumstances include the knowledge possessed by the court, facts whereof judicial notice should be taken, the testimony of witnesses, and the opportunities of petitioners and remonstrance for knowing the things about which they volunteer information.
    The fact that the place is necessary either as a hotel or as an eating house for public accommodation does not necessarily and under all circumstances compel the conclusion that a license to the applicant to sell intoxicating liquors by retail at such place is necessary. In other words, not every place that may be necessary as a hotel or as an eating house for public accommodation is entitled as matter of right to be licensed to sell liquors if the other statutory requirements are complied with.
    Argued May 17, 1907.
    Appeal, No. 201, April T., 1907, by The Reznor Hotel Company, from order of Q. S. Mercer Co., Jan. T., 1907, No. 47, refusing a liquor license.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for a retail liquor license. Before Williams, P. J.
    The opinion of the Superior Court states the case.
    The court in an opinion refusing the license used the following language:
    “ A reading of the testimony taken on behalf of the petitioners, a careful consideration of the petitions and remonstrances filed, and of all the facts and circumstances before the court, and having due regard to the number and character of the petitioners for and against the licenses prayed for, have failed to convince us that such licenses are a matter of public necessity within the meaning of the act of assembly. Much as we were impressed by the earnest and able arguments of the learned counsel for the petitioners, we have been unable to agree with their conclusions. And the most that we can say is that their argument has left our mind in doubt as to the necessity for said licenses, and it therefore becomes our duty to refuse the same.”
    October 7, 1907:

      Error assigned was the order of the court.

      Joseph W. Nelson, with him J. Gr. White, for appellants.
    No appearance for appellee.
   Opinion by

Rice, P. J.,

The third section of the Act of May 13, 1887, P. L. 108, regulating the granting of retail liquor licenses, provides that the court “ shall fix by rule or standing order a time at which applications for said licenses shall be heard, at which time all persons applying or making objections to applications for licenses may be heard by evidence, petition, remonstrance or counsel,” and section seven provides that the court “ shall hear petitions from residents of the ward, borough or township, in addition to that of the applicant, in favor of and remonstrance against the application for such license, and in all cases shall .refuse the same whenever, in the opinion of the said court having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers or travelers,” etc. It does not appear in the record proper that the court failed to comply with any of these statutory requirements, but it is claimed that it appears by the opinion filed by the court, which is referred to in the final order as containing the reasons for its refusal of the license, that the applicant was deprived of the right to present an additional petition at the hearing and to have the same considered by the court. The opinion does not clearly show that the court did not receive nor consider this additional petition, but it may be inferred, perhaps, that the court did not give it the same consideration that it would have given if it had been filed before the hearing as the standing rule of court required. The statute does not declare when the additional petitions for and against the license shall be filed, nor even that they shall be filed at all. This is a matter of practice, which the court by virtue of its power to make reasonable rules not in contravention of law may regulate in that manner. True, the rule in question requires something to be done which is not required by the statute, but it does not necessarily follow therefrom that it is in contravention of law. The same objection might be made to many' familiar rules of practice the validity of which no one has ever disputed, and to many other rules which have been questioned on this ground, but, nevertheless, have been declared valid. See Standard Underground Cable Co. v. Johns-town Telephone Co., 26 Pa. Superior Ct. 432, and the cases therein cited. A rule of court which provides that all additional petitions and remonstrances shall be filed on or before the first day of the term at which the application is to be heard, and gives the parties a period of three weeks after the original petition is filed within which to circulate and file the additional petitions, deprives neither applicant nor remonstrant of any statutory right, and is not so plainly an abridgment of that right as to justify us in declaring it invalid upon that ground or the ground of unreasonableness.

The refusal of an application for a retail liquor license, after full hearing and consideration of all the matters that the court may consider, because in the opinion of the court it is not necessary for the accommodation of the public and the entertainment of strangers or travelers, does not make the question of necessity res judicata upon the hearing of the application of the same person for the same premises in a subsequent year. The granting or the refusal of the license in previous years is not conclusive, and, under some circumstances, it ought to have but little, if any, weight in the determination of the application before the court. But that in the exercise of a sound judicial discretion the court may not consider it in connection with the other relevant facts established at the hearing or known to the court, particularly if the conditions be unchanged, is an entirely different proposition and one that cannot be sustained. An examination of the opinion fails to show that the court deemed it conclusive or, as stated in the assignments of error, that the license was refused because licenses had been refused by the court in the borough in previous years.

The mandate of the statute is that the court shall have due regard to a number and character of the petitioners for and against the application in determining the question of necessity. The words “ having due regard,” even if they stood alone, would not clearly imply that the question is to be determined in favor of the side presenting the weightest petition in number and character of signers, and the context shows quite clearly that such was not the legislative intent. The right given by the statute is to be heard by evidence and petition, not simply by evidence or petition, and this right implies a right to have both evidence and petition considered by the court when both are presented. There is one expression in the opinion of the court below which upon a cursory reading might seem to warrant the inference that the court acted upon the theory that when both number and character of the petitioners concur in favor of or against an application for a license the court should, in the absence of positive personal knowledge of material facts, exercise its discretion accordingly. This in our judgment is not the proper view, and in support of this conclusion we need only cite the opinion of Chief Justice Paxsox, in Sparrow’s Petition, 138 Pa. 116. But the immediate context, as well as the subsequent portions of the opinion filed by the learned judge below in this case, shows that the court did not act upon that theory, but interpreted the words “ due regard ” to mean such regard as the circumstances of the case demand, and that these circumstances include the knowledge possessed by the court, facts whereof judicial knowledge should be taken, the testimony of witnesses, and the opportunities of petitioners and remonstrants for knowing the things about which they volunteer information. That the court did not act upon the theory that the matter was to be determined upon the petitions alone, without regard to the testimony, is made reasonably certain by its conclusion upon the whole case, which is stated in these words: “ A reading of the testimony taken on behalf of the petitioners, a careful consideration of the petitions and remonstrances filed, and of all the facts and circumstances before the court, and having due regard to the number and character of the petitioners for and against the licenses prayed for, have failed to convince us that such licenses are a matter of public necessity within the meaning of the Act of Assembly.”

It is further claimed that “the court erred in making his admitted doubt the basis of the refusal of the license. ” While in the clause of the opinion immediately following the above-quoted conclusion the court intimates that a doubt would be sufficient to make it the duty of the court to refuse the license, the inference to be drawn from the whole opinion is that the burden was on the applicant for the license to show that it was necessary for public accommodation and that this had not been done satisfactorily. This being the condition of mind in which the court was after consideration of all the matters it was authorized to consider, we cannot say that, notwithstanding that, it was an abuse of discretion to refuse to grant, the license.

It is argued further that as the court found that all the statutory requirements as to the form and the filing of the petition, as to the fitness of the applicant, and as to the qualifications of the petitioners, were fulfilled, and that the applicant’s hotel was necessary for public accommodation, the right to a license necessarily followed. This might have been so under the acts of 1834 and 1859, but in the act of 1867, of which in this particular the act of 1887 is a copy, the words “such license ” are substituted for the words “such inn, hotel or tavern” which had appeared in the act of 1859. This change was apparently intentional and it is to be given due consideration in determining what is meant by the words used in the present law. It may be conceded that proof that the applicant’s place is necessary for the accommodation of the public and the entertainment of strangers or travelers goes very far to move in a proper way the discretion of the court and to warrant its inference that the license applied for is necessary; but it must be also conceded that the fact that the place is necessary either as a hotel or as an eating-house for public accommodation does not necessarily and under all circumstances compel the conclusion that a license to the applicant to sell intoxicating liquors by retail at such place is necessary. In other words, not every place that may be necessary as a hotel or as an eating-house for public accommodation is entitled as matter of right to be licensed to sell liquors if the other statutory requirements are complied with.

In Schlaudecker v. Marshall, 72 Pa. 200, which is the leading case upon the subject, Mr. Justice Ag-new said: “Whether any or all licenses should be granted is a legislative, not a judicial question. Courts sit to administer the law fairly, as it is given to them, and not to make or repeal it. The law of the land has determined that licenses shall exist, and has imposed upon the court the duty of ascertaining the proper instances in which the license shall be granted, and therefore has given it to the court to decide upon each case as it arises in due course of law. The act of deciding is judicial, and not arbitrary or willful. The discretion vested in the court is, therefore, a sound judicial discretion; and to be a rightful judgment it must be exercised in the particular case and upon the facts and circumstances before the court, after they have been heard and duly considered; in other words, to be exercised upon the merits of each case, according to the rule given by the act of assembly. To say that I will grant no license to any one or that I will grant it to every one is not to decide judicially on the merits of the case, but to determine beforehand without a hearing or else to disregard what has been heard ; it is to be determined not according to law, but outside of law, and it is not a legal judgment, but the exercise of an arbitrary will. ”

In the later case of Gross’s License, 161 Pa. 844, Mr. Justice Dean, speaking of the jurisdiction of the Supreme Court in reviewing the orders of the quarter sessions in such matters, stated the following propositions :

“ 1. The discretion must be exercised in a lawful manner. The applicant hath a right to be heard, and so have objectors. A decree without hearing’ or opportunity for hearing at a time fixed by rule or standing order as the law directs, would be manifestly illegal, and on certiorari would be set aside.

“2. If the court has in a lawful manner performed the duty imposed upon it, it is not our business to inquire whether it has made a mistake in its conclusions of fact. Whether the same facts induce in our minds the same belief as in that of the court below, as to the character of the applicant, or other material averments, is wholly immaterial; it is the discretion of the court of quarter sessions, not ours, that the law requires.

“ 3. A decree made arbitrarily, or in violation of law, it is our plain duty to set aside. For example, if a judge should refuse a license, because in his opinion the law authorizing licenses is a bad law, or if he should grant all licenses because he believed the law wrong as tending to confer a privilege on a special few, in either case there would be no exercise of judicial discretion; both would be the mere despotic assertion of arbitrary will by one in power, that sort of lawlessness which is least excusable and excites most indignation.

“ 4. If the record shows the decree was had after hearing at a time fixed by rule or standing order, the presumption is, the decree is judicial and not arbitrary, and this presumption is not rebutted by an argument from evidence that the court ought to have reached a different conclusion. ”

An examination of this case in the light of these well-settled principles has failed to convince us that the court proceeded contrary to law or abused the discretionary power committed to it, and this being so the order must be affirmed.

What has been said with regard to this case applies equally well to the two succeeding cases.

The order is affirmed.


author: Per Curiam,

text:
    Rader’s License.
    October 7, 1907:
    Argued May 17, 1907.
    Appeal, No. 202, April T., 1907, by Charles L. Rader, from order of Q. S. Mercer Co., Jan. T., 1907, No. 47, refusing a retail liquor license.
    Before Rice, P. J., Henderson, 0ready, Head and Beayer, JJ,
    Affirmed,
   Per Curiam,

The order is affirmed,


text:
    Buckham’s License.
    October 7, 1907 :
    Argued May 17, 1907.
    Appeal, No. 203, April T., 1907, by Edward Buckham, from order of Q. S. Mercer Co., Jan. T., 1907, No. 45, refusing a retail license.
    Before Rice, P. J., Hendebsob, Oblady, Head and Beaveb, JJ.
    Affirmed.
   Per Curiam,

The order is affirmed.


author: Orlady, J.,

text:
    Gailey v. New Castle Elastic Pulp Plaster Company, Appellant.

      Deed — Reformation of deed — Evidence—Equity—Ratification—Corporation.

    In order to reform a deed on the ground of mistake, it must clearly appear by the testimony of witnesses who distinctly remember the facts that a mistake was made, and that the writing does not express the agreement. The testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind.
    To bind a corporation by a ratification of a preliminary agreement which is omitted by a mutual mistake, it is essential that the corporation have full knowledge of all the facts and circumstances, and also that it was known that it would not be bound without ratification. Such relief is generally withheld unless the parties can be restored substantially to their position at the time the contract was made. If this cannot be done the court will relieve only where the clearest and strongest equity imperatively demands it.
    Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence which may fairly be expected from a reasonable person.
    A bill in equity to reform a deed to a corporation by inserting a covenant alleged to have been omitted by mutual mistake, will be dismissed, where the answer denies that a mistake was made, and it appears that the plaintiff ignored the omission for several years, and took no steps in the matter until the position of the parties had materially changed, and it does not appear that the scriviner made any mistake in preparing the deed according to instructions, and the plaintiff’s only explanation of the omission was, that it was “ just through neglect and carelessness.”

      Argued May 16, 1907.
    Appeal, No. 199, April T., 1907, by defendant, from decree of C. P. Lawrence Co., Sept. T., 1906, No. 1, on bill in equity in case of Robert C. Gailey v. New Castle Elastic Pulp Plaster Company.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity to reform a deed.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree. in favor of the plaintiff.

      J. Norman Martin, with him Leonard M. Tiber, for appellant.
    The general rule is that a mistake will not be relieved against if it is the result of the party’s own negligence, as for instance, where he has not taken trouble to read or to have read to him the paper he was executing: Greenfield’s Estate, 14 Pa. 489 ; Pennsylvania Railroad Co. v. Shay, 82 Pa. 198 ; Susquehanna Mutual Fire Insurance Co. v. Swank, 102 Pa. 17; Lewis v. Dunlap, 5 Pa. Superior Ct. 625.
    In order to justify a decree for reformation in case of pure mistake, it is necessary that the mistake should have been mutual: Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133.
    To reform a deed the evidence must be clear, precise and indubitable and it must be established that the mistake was mutual; that it continued in the minds of the parties down until the execution of the instrument in question, and the evidence must further show the exact form to which the instrument should conform: Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133; Boyertown National Bank v. Hartman, 147 Pa. 558; Rowand v. Finney, 96 Pa. 192; Edmonds’s Appeal, 59 Pa. 220.

      Wylie McOaslin, with him S. W. Lana and Richard F. Lana, for appellee.
    The jurisdiction of equity to reform a deed which by mistake fails to express the intention of the parties at the time, is unquestionable: Cook v. Liston, 192 Pa. 19; Stafford v. Giles, 135 Pa. 411; Baab v. Houser, 203 Pa. 470 ; Kostenbader v. Peters, 80 Pa. 438 ; Wright v. Delafield, 23 Barb. (N. Y.) 498; Wanner v. Sisson, 29 N. J. Eq. 141; Bishop v. Reed, 3 W. & S. 261; Merritt v. Getz, 19 Pa. Superior Ct. 505.
    October 7, 1907:
    Neither an individual nor an association incorporated or unincorporated can reap the fruits of an agent’s unauthorized acts and at the same time repudiate the contract: Meyerhof v. Daniels, 173 Pa. 555; Wayne Title & Trust Co. v. Electric Railway Co., 191 Pa. 90; Wojciechowski v. Johnkowski, 16 Pa. Superior Ct. 444.
   Opinion by

Orlady, J.,

This bill in equity was filed June 11, 1906, for the purpose of reforming a deed made and delivered by the plaintiff to the defendant, so as to have reserved to the plaintiff, his heirs and assigns, the right to use any siding of a railroad track which might be constructed over the land conveyed, for the use of the plaintiff, his heirs and assigns on the adjoining land owned by him,

The plaintiff was the owner in fee of a tract of land in New Castle, and under a verbal proposition, a sale of a triangular piece of the larger tract was made to certain persons, who had formed a preliminary organization for a corporation, and who subsequently perfected the defendant corporation and who constituted its first board of directors. The deed was executed and delivered June 19,1900, and was soon thereafter placed on record by the defendant. It is absolute on its face, contains covenants of general warranty, and is without any reservation.

At a meeting of the corporation held July 13, 1900, the plaintiff acted as the presiding officer when the following action in regard to this property was taken, as shown by the minutes, “In the matter of purchase of ground for mill site, it was moved and seconded, that the site offered by the Gailey Lumber Company (the plaintiff) and the conditions and terms as made by them, together with the full description and boundaries of same as fully set forth in deed be accepted. It was then moved and .seconded that the president and secretary be instructed to sign the necessary papers to complete the deal; on being put to vote same was carried.”

Following this, on July 14, the defendant company executed a mortgage on said land to the plaintiff, who on July 18 assigned the mortgage to Sarah A. Flinn.

The reason urged for the reformation of the deed was the mutual mistake of the parties in not including the reservation of the.right and privilege as set out in the bill, and that the deed, by reason thereof, “ does not express the agreement and intention of the parties, the omission having been accidentally overlooked by both parties.” After the delivery of the deed the plaintiff, being a stockholder and director of the corporation, sold a large amount of the stock owned by him to different persons, without any mention of his claim to said reservation.

The deed and the mortgage were prepared by a prominent member of the bar, who was selected by the plaintiff, and no mention was made of such a reservation or direction given in relation thereto. R. K. Aiken, Escp (who was also the attornej of Mrs. Flinn), testified, viz.: “ As attorney for Mrs. Flinn, who took the assignment of the mortgage, I was particularly careful with reference to the preparation of the deed and mortgage and feel satisfied would not have omitted anything that would prejudice Mrs. Flinn and her interests, so for that reason I tried to be careful, and have no recollection whatever of omitting anything, but protected everything that was spoken about.” It is not suggested that any instructions were given to the counsel to insert any reservation, or that he made any mistake in discharging his duty. When the plaintiff was asked, “ How does it occur that such condition or reservation was not made a part of the deed?” he replied, “ Well, just through neglect and carelessness, I suppose; ” and when asked how long prior to the taking of his testimony, he knew of the omission from the deed, he replied, “ Possibly a couple of years.”

The testimony clearly shows that there were conversations between certain of the parties prior to the incorporation of the defendant company, but none of the witnessess, except the plaintiff, are at all clear and positive in their recollection of the circumstances, and the claim of mutual mistake is specifically denied in the answer and in the defendant’s proof. No further action was taken in regard thereto until this suit was instituted nearly six years thereafter, during which time the conditions have materially changed. New stockholders are now interested, and the business of the company is under a different control. The successful assertion of this claim would impair the defendant’s property. The general manager testified as follows: “ Q. With the right of Mr. Gailey to use the siding over that property for running cars up to his property, in your opinion, would that lessen the value of the property? A. Well, it would simply put us out of business. Q. Well, would it lessen the value of the property in the market ? A. Surely it would for what it is used for.”

Making his case as strong as his own testimony will allow, the plain facts remain against him, -that he had the deed prepared, executed and delivered it, either without reading it or after reading it, he ignored the omission of the reservation he now seeks to have inserted, and, after having sold of his holdings in the corporation to different persons without any notice of his present contention, he would seriously depreciate their interests. This he cannot be permitted to do under the facts as he has made them. Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence which may fairly be expected from a reasonable person: Kerr on Fraud and Mistake, 407; Grymes v. Sanders, 93 U. S. 55.

It is undoubtedly the law, that where an instrument is drawn and executed which professes, or is intended to carry into execution an agreement previously entered into, but which by mistake of ’the draftsman, either as to fact or law, does not fulfill that intention, or which violates it, equity will correct the mistake so as to produce a conformity with the instrument intended: Stines v. Hays, 36 N. J. Eq. 364. But there are no equitable elements sufficiently proved in this case, there was no mistake of scrivener, or grantee, the sole cause being as stated by the plaintiff, “ just through neglect and carelessness ” or “ an oversight and neglect ” on his own part.

To bind the corporation, by a ratification of the preliminary agreement which is omitted by a mutual mistake, it is essential that the corporation have full knowledge of all the facts and circumstances, and also that it was known that it would not be bound without ratification: Bell’s Gap R. R. Co. v. Christy, 79 Pa. 54; Pittsburg & Steubenville R. R. Co. v. Gazzam, 32 Pa. 340; Tift v. Quaker City National Bank, 141 Pa. 550 ; Curry v. Claysville Cemetery Association, 5 Pa. Superior Ct. 289.

Such relief is generally withheld unless the parties can be. restored substantially to tbeir position at the time the contract was made: 20 Am. & Eng. Ency. of Law (2d ed.), 820. If this cannot be done, the court will relieve only where the clearest and strongest equity imperatively demands it: Grymes v. Sanders, 93 U. S. 55; 23 Law Co-op., ed. 798; Weller’s Appeal, 103 Pa. 594; Moore v. Fire Ins. Co., 199 Pa. 49.

In Graham v. Carnegie Steel Co., 217 Pa. 34, it is stated, and it has been repeatedly so held to be the rule, that: “ In order to reform a deed on the ground of mistake, it must clearly appear by the testimony of witnesses who distinctly remember the facts that a mistake was made, and that the writing does not express the agreement. The testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind.” Vide also Edmonds’s Appeal, 59 Pa. 220; Boyertown National Bank v. Hartman, 147 Pa. 558; Highlands v. Railroad Company, 209 Pa. 286; Youngstown Electric Light Company v. Butler County Poor District, 21 Pa. Superior Ct. 95.

Measured by these standards, the testimony falls far short in quality and quantity to warrant the reformation of the deed as prayed for. The fifteenth assignment of error is sustained, the decree is reversed and the bill dismissed with costs to be paid by the appellee.


text:
    Good Roads Machinery Company, Appellant, v. Union Township.

      Townships — Supervisors—Contract—■Evidence.
    In an action against a township to recover the price of a rock crusher sold under a warranty that it would do certain work specified, evidence to the effect that one of the two supervisors who bought the machine was “satisfied to accept and settle for it” is immaterial and irrelevant, inasmuch as the acceptance by one supervisor without the concurrence of the other will not bind the township. In such a case the only question is whether the machine did the work it was warranted to do.
    The two supervisors of a township signed a written contract for the purchase of a stone crusher. In an action against the township to recover the purchase money, one of the supervisors testified that before the contract was signed, the plaintiff’s agent, in reply to his inquiry. said that an eight-horse power engine would do to run the machine. At a test made after the delivery of the machine it was found that an eight-horse power engine would run it, but not perhaps to the limit of its efficiency. The witness was asked whether or not he would have signed the contract or any other contract for a stone crusher, if the agent had not made that statement. The supervisor thus testifying was not. satisfied that the machine came up to the requirements of the warranty given at its sale. After his term of office had expired, a second test was made to the satisfaction of the other supervisor who had been a party to the purchase of the machine. Held, that it was error to permit the supervisor to testify that he would not have signed the contract if the agent had not made the statement in question.
    If all the supervisors of a township meet and consult together in reference to the purchase of a road machine, and then join in a contract for the purchase of the machine, the vendor of the machine is not bound to show affirmatively that the supervisors did their full duty. If there be no fraud or collusion, and no conduct on his part by which h'e knowingly induced them to forego that deliberation and the exercise of that judgment and discretion in the interest of the township which the law requires of them, he has a right to act upon the presumption that they did their duty; he is not bound to be present at their'meeting and see that they did.
    Argued May 16, 1907.
    Appeal, No. 75, April T., 1907, by plaintiff, from judgment of C. P. Lawrence Co., Sept. T., 1904, No. 123, on verdict for defendant in case of the Good Roads Machinery Company v. The Township of Union, William Botham and Ira Gibson, supervisors.
    Before Rice, P. J., Henderson, Orlad y, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover the price of a rock crusher. Before Porter, P. J.
    The facts are stated in the opinion of the Superior Court. When William Botham, one of the supervisors, was on the ' stand, he was asked this question :
    “ Q. Was that a satisfactory test to you of the ability of that machine to do its work as the contract provided ? ”
    Objected to as a conclusion, and that is for the jury. '
    The Court. The witness has stated that the machine did, and the jury can determine whether it did the work provided for in the contract. Exception. [1]
    “Q. Did the.test disclose the fact that the machine would do what the contract specified it would do? A. I stated that it did — it crushed a load of stone of 8,500 weight — 3,000 weight, at least, in six minutes, and multiply that it would take from twelve to fifteen — twelve to fifteen tons an hour is what the contract specified.”
    ********
    “ Q. Were you satisfied to accept, and settle for the machine.” Objected to.
    The Court: We have here the contract of the parties. The witness will be permitted to testify what work the machine did at the test. It is for the jury after hearing the facts under the contract as to what it did — -whether after hearing of the Avork the machine did — the contract has been complied with. The conclusion is for the jury.
    Mr. Castle (for plaintiff). He being an officer of the township, would the township not be bound by his judgment in the matter ?
    The Court: It would if both officers, in a properly called meeting, concluded on it. As the matter stands the objection is sustained, and an exception sealed for the plaintiff. [2]
    Lawrence Truesdell, the other supervisor, was asked this question:
    “ Q. In that conArersation that you had at the road with Mr. McKean and Blackstone, what was said with reference to engines, LaAvrence? A. Well, norv, I asked him particularly what sized engine it took; I told him what kind Ave had in the township — we only had the one, and it was an eight-horse power — well, he said: ‘That would do to run it.’ Q. That was said before the paper was signed? A. Yes, sir, Ave had an engine of our own, in our own township, and I thought avo wouldn’t have to go out of our own township if anything turned up. Q. Would you or not have signed the contract, or any other contract for a stone crusher if he had not said an eight-horse power engine would run it?”
    Objected to as incompetent, irrelevant and immaterial; it being simply a question what witness did.
    The Court: We will admit the question and seal an exception for the plaintiff. [3]
    Question read the witness.
    “ A. No, I hardly believe I would, because that was a benefit to the township.”

      The court charg’ed in part as follows :
    [It is proper and right that those who represent the interest of the people should honestly confer, and fairly deliberate, and arrive at a conclusion, and having arrived at a conclusion, to act upon it. For instance: No doubt when you gentlemen retire to your jury room you may disagree as to this case ; some of you having one view and some another; yet when you confer and deliberate your attention will be called to some fact or facts that you may have overlooked in your consideration, and yet when your attention is called to this fact or some other fact, then you see the matter as the one who presents the subject to you sees it. This, gentlemen, is deliberation. Consider the various phases of the question involved. You have the combined judgment of each member of the jury, and when you have that combined judgment, and you agree, then you agree upon a verdict. So that if these gentlemen as supervisors met together, discussed the subject under consideration and arrived at a conclusion, that conclusion is what they acted upon. We believe with this explanation you will have no difficulty in understanding what we mean when we say, that in order to hold this defendant township, you must find that the township supervisors honestly conferred and deliberated, arrived at a conclusion, and acted upon it.] [4]
    [And this brings us to the question as to whether or not at the meeting, or in that talk, the supervisors of Union township, as supervisors, did honestly confer, and fairly deliberate upon the question of the purchase of a stone crusher. You have heard the testimony of Mr. Botham, as well as the testimony of Mr. Truesdell, as to what took place at that meeting when they, as supervisors, were there by themselves. In determining whether or not the supervisors did honestly confer, and fairly deliberate, you will take the testimony, not only of what took place while Mr. Botham and Mr. Truesdell were together, alone, but also the conversation that took place at the side of the buggy, and from all the testimony arrive at a conclusion as to whether or not it was fairly concluded, after deliberation on the part of the supervisors, that they would purchase this stone crusher, provided it did the work as represented, or warranted in this contract.] [5]
    Defendant presented these points;

      2. Union township has two supervisors, and consultation and deliberation on their part as a board of supervisors is just as necessary and mandatory as in townships having three or more supervisors, and they are required to honestly confer together and fairly deliberate in the interests of the taxpayers before they attempt to bind the township by their action, and those who deal with the township supervisors must take care to have the honest judgment of those to whom is intrusted the transaction of the public business. Answer: Affirmed. [6]
    4. If the jury find from all the evidence that the supervisors of Union township did not honestly and fairly deliberate together and hold a conference in which they compared views and interchanged ideas as to the purchase of the stone crusher, their action does not bind the defendant township, and the plaintiff cannot recover. Answer: Affirmed. [7]
    5. The supervisors of Union township could not bind the township of Union unless they as supervisors honestly and fairly conferred together on the subject of the purchase of the stone crusher, and if the jury find from the evidence that the alleged contract was entered into by the supervisors of Union township without a comparison of views and interchange of ideas as a board of supervisors, but that they acted individually and separately, the contract was void and the plaintiff cannot recover. Answer: Affirmed. [8]
    8. The signing of the written order by the supervisors cannot bind the township of Union if the supervisors did not properly deliberate and honestly confer together as supervisors, and if the jury find that the order was signed by the supervisors without proper deliberation and a fair conference in which they exchanged views and interchanged ideas, their action cannot bind the township, and your verdict should be for the defendant. Answer: Affirmed. [9]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions ; (4-9) above instructions, quoting them.

      James M. Martin, with him A. L. Hazen, for appellant.—
    Those contracting with public officers are not obliged to inquire beyond their general authority to make the contract: Harshman v. Dunbar Twp., 11 Pa. Superior Ct. 638; Climax Road Machine Co. v. Allegheny Twp., 10 Pa. Superior Ct. 437; Childs v. Brown Twp., 40 Pa. 332; Oakland Twp. v. Martin, 104 Pa. 303; Austin Mfg. Co. v. Ayr Twp., 24 Pa. Superior Ct. 91.
    October 7, 1907 :

      H. If. Gregory, with him R. If. Aiken and T. W. Rickey, for appellee, cited:
    Austin Mfg. Co. v. Ayr Twp., 31 Pa. Superior Ct. 356; Western Wheeled Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477 ; Logan v. Rochester Twp., 21 Pa. Superior Ct. 113.
   Opinion By

Rice, P. J.,

In November, 1902, William Botham and Lawrence Trues-dell, the two supervisors of the defendant township, and acting as such, signed and delivered to T. L. McKean, the plaintiff’s agent, an order to ship to them as soon as possible a No. 4 Champion rock crusher, on the following conditions: “ On the arrival of said rock crusher at the above-named R. R. station, the undersigned hereby agree to set up the crasher and there work it under the directions of the Good Roads Machinery Company’s agent, unless otherwise agreed; when if the said crusher does work as warranted on the back of this order, the undersigned hereb)’- agree to pay to the Good Roads Machinery Company, or order, Nine hundred fifty dollars in cash or note, bearing interest at the rate of 6 per cent, per annum from the date of trial, payable at National Bank of Lawrence County. If the crusher does not do the work as warranted, then the Good Roads Machinery Company agrees to receive back the crusher at the railroad station from which it was taken and cancel this contract. It is understood that this contract embodies the entire understanding, is not subject to countermand and is not to be affected by any verbal contract.” By indorsement on the back of the paper the plaintiff warranted, inter alia, that the machine would crush, under ordinary circumstances in regular and practical work, from twelve to eighteen tons of stone per hour. In due time the machine was shipped by rail to the station specified in the order and from there was hauled by one of the supervisors to the township, where it was set up and a test was made. Before making it the plaintiff’s agent objected that the engine furnished by the supervisors was not of sufficient horse-power; nevertheless the working of the machine seems to have been satisfactory to Botham, but not so to Truesdell. It was then agreed to have another test with a more powerful engine, but owing to the weather this was delayed until spring. In the meantime Truesdell’s term of office expired and he was succeeded by Ira Gibson. Gibson had due notice of the second test, but he refused to have anything to do with the matter. The test was'made in his absence, but in the presence and under the direction of Botham and the plaintiff’s agent, and in the presence of other citizens of the township; and according to the uncontradicted testimony it showed that the machine was up to the warranty. So far as appears the supervisors made no attempt or offer to redeliver the machine to the plaintiff at the railroad station, as the terms of the contract provided in the event of its not doing the work as warranted. Although there was no substantial dispute as to any of the foregoing facts, the jury found for the defendant, and from the judgment on their verdict we have this appeal.

Under the contract between the plaintiff and the supervisors, the condition was that the machine would do certain work, not that it would do the work to the satisfaction of the supervisors. If upon a proper test it was found that it could not do the work, one supervisor could not waive the condition and bind the township by an acceptance in which his associate did not concur. On the other hand, one supervisor could not prevent consummation of the sale by arbitrary refusal to join in the second test that had been agreed upon. The question was whether the machine did the work it was warranted to do. If it did, the condition was fulfilled. If it did not, it was not fulfilled. In either event, the fact that the supervisor, who was present at the second test, was “ satisfied to accept and settle for the machine,” was immaterial and irrelevant. Therefore, the court committed no error in rejecting the offers to prove it, and in confining the testimony to the question whether the machine did the work the contract specified it would do.

Truesdell, the only witness called by the defendant, testified that before the contract was signed the plaintiff’s agent, in reply to his inquiry, said that an eight horse-power engine would do to run the machine. The witness was then asked whether or not he would have signed the contract or any other contract for a stone crusher, if the agent had not made that statement. To which, under objection and exception, he answered: “No, I hardly believe I would because that was a benefit to the township.” If the offer had been to prove precisely what the witness testified, namely, his present belief as to what he would have done, we assume that the court would have rejected it. Such testimony was clearly incompetent to affect the written contract. This need not be discussed. But as no motion was made to strike out the testimony, it would be unfair to reverse the case upon this assignment, if the question put to the witness was a permissible one. It certainly was not relevant to ask him whether he would have signed any other contract. To that extent the question was plainly objectionable. Was it permissible to ask him whether or not he would have signed the contract in question, if the plaintiff’s agent had not made the alleged statement? It is objected by the appellant’s counsel that the question presupposes an answer involving an operation of the mind and not susceptible of contradiction, and, therefore, should- have been excluded. There are two classes of cases bearing upon the general question of the admissibility of testimony of this character which will be appropriate to review. We shall refer first to some of the cases wherein the testimony of a party as to his motive, belief or intent has been held to be competent, and then to cases of the other class.

In an action to recover the amount of money which the defendant received upon an assignment obtained by misrepresentation and fraud, it was held competent to prove by the testimony of the assignor that he acted in confidence of the truth of the defendant’s misrepresentations; “for” said Chief Justice Gibsoít, “ unless he was injured by the deceit, it could give him no right of action: ” Cummings v. Cummings, 5 W. & S. 553. In Commonwealth to use v. Julius et al., 173 Pa. 322, which was an action on a guardian’s bond, the defendants set up a release executed by the ward after she became of age, and she alleged that she was induced to sign it by certain false and fraudulent representations, especially that her counsel agreed to the advisability of such a settlement, and that one of them had said she would probably get little or nothing out of her case by further litigation. In connection with testimony as to the representations and their falsity, she was permitted to testify that they were the inducement to her action. This was held not to be error. In Weaver v. Cone, 174 Pa. 104, which was an action to recover damages for a loss occasioned by a false and fraudulent representation by the defendant which induced the plaintiff to sell his stock at less than its market value, it was held to be proper for the plaintiff’s counsel to ask him what it was that induced him to sell the stock at the price which he did. In Bartley et al. v. Phillips, 179 Pa. 175, which was an action of ejectment for oil and gas lands in which the plaintiffs claimed under a lease from the owner and the defendant claimed under a later lease from a grantee of the same owner, it was held to be competent for the plaintiffs to testify that in removing certain materials from the land they had no intention to abandon the lease.

It will be observed that in three of the foregoing cases there was an allegation of false and fraudulent representations which induced the party’s action, and that in the fourth the intention of the party determined the character of his action.

On the other hand, in an action upon bonds accompanying a mortgage for the purchase money of real estate, wherein it was alleged that at the time when the papers were delivered it was agreed that the plaintiff would look to the land alone for the whole purchase money and that any judgment or judgments that should be obtained on the bonds should be liens only on that land, it was proposed to ask the defendant, “What was the inducement that led you to sign the bonds and mortgage?” and “Did you sign these bonds and the mortgage, relying at the time upon the contemporaneous agreement in parol?” and “ In consequence of the acts and declarations of Mr. Colt, did you sign these papers ? ” The rejection of the offers was held to be proper. Speaking of these rulings Justice Wood ward said: “Everything that was said and done at the time when the bonds and mortgage were executed, was received. The unexpressed intent, motive or belief existing in Mr. Mauser’s mind when he signed the papers, could not aid the jury in ascertaining whether the language or conduct of the plaintiff had been such as to create such an intent, motive or belief. The parties to a contract may often have different impressions regarding its effect upon their respective interests, but the thoughts of one certainly cannot be proved to bind the other: ” Spencer v. Colt, 89 Pa. 314. So in an action by a building association against a surety on a bond given to secure a loan made by the association to a member it was held to be reversible error to allow the defendant to be asked whether he would have signed the bond if it had not been agreed at a meeting of the board of directors that certain real estate should be mortgaged as security for the loan and be first liable for its repayment. In the course of his discussion of the question, Justice Tbttnkey said: “ When the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent, from its nature, would be formed and held without avowal, then he, upon whom the intent is charged, may testify whether he secretly held such intent when he did the act. This does not apply to the making of contracts, and a party to a contract shall not testify his undisclosed purpose or intention to nullify words and acts relied upon by others, which in themselves prima facie evidence the agreement: ” Juniata Building & Loan Association v. Hetzel, 103 Pa. 507. In an action upon a written contract for the manufacture and delivery to the defendant of certain farming implements, the defense was set up that there was a contemporaneous oral agreement that the defendants should have the absolute right to countermand the order at any time before a certain date, and that they had countermanded it. It was held that proof of this agreement was competent, but that the defendant’s testimony that it was the sole' inducement for his signing of the contract was not. In reversing the judgment because of the admission of this testimony the court said : “ It was competent to prove all that was said and done. It was for the jury to determine from what was said and done at the making of the contract whether the oral agreement, if proved, induced the defendants to sign the written one. The defendants are not permitted to testify their unexpressed intent, motive or belief, at the time they signed the contract: ” Thomas & Sons v. Loose et al., 114 Pa. 35. To the same effect is Cullmans et al. v. Lindsay et al., 114 Pa. 166. In Cake v. Pottsville Bank, 116 Pa. 264, which was an action by the payee of a note against the indorser, it was held competent to show by parol evidence that when the note was made, indorsed and delivered, the plaintiff’s agent procuring the note agreed with the defendant that he should not be held liable on his indorsement, but the payee would look to collateral security agreed to be given, but that it was not competent for the defendant himself to testify that he “ would not have indorsed the notes had it not been for the express stipulation that he should not be liable thereon.”

Three of the five cases last cited were reviewed by the present chief justice in Commonwealth v. Julius, and Juniata Building & Loan Association v. Hetzel was again considered in Bartley v. Phillips. We do not understand these latter cases to overrule the cases that are therein reviewed and distinguished. It therefore devolves upon us to determine to which class the present case belongs. The weight of the testimony goes to show that the plaintiff’s agent did not say that an eight horse-power engine would run the machine. But suppose he did, it is evident that the statement was as to the power that would be required at the test that was to be made, and was not such a fraudulent misrepresentation as would sustain an action for deceit. Strictly speaking, it was not even untrue, because the engine did run the machine, although not to the satisfaction of Truesdell, and perhaps not to the full standard of efficiency specified in the warranty. Moreover, a second test was agreed upon. These considerations lead to the conclusion that the case does not fall within the principle applicable where false and fraudulent representations are set up as the inducement of the party’s action, and no argument is required to show that it does not fall within that class of cases to which the principle is applicable that where the legal character of an act is determined by the intent with which it is done, the person doing the act may testify as to his intention at the time. The statement alleged to have been made by the plaintiff’s agent was not even a collateral promise or undertaking, such as was shown in Spencer v. Colt or cases of that class, and, even if it could be so construed, these cases show that the testimony of the supervisor as to what he would have done if the statement had not been made would be inadmissible. A fortiori, it was not competent in this indirect way to prove that he interpreted it as a promise or undertaking on the part of the plaintiff, and that he would not have made the contract had it not been for the influence that it had upon his judgment. We conclude that the objection to the question should have been sustained, and we are unable to say that the answer was so'indefinite as to render the error harmless.

• The remaining assignments relate to the charge of the court and the affirmance of the defendant’s points, and may be considered together. The facts are, without reciting unimportant details, that the two supervisors and the plaintiff’s agent met and consulted with regard to the purchase of a machine, and in the course of their discussion the plaintiff’s catalogue was exhibited and different sizes of machines weré considered. The plaintiff’s agent then prepared the contract in question and read it to the supervisors. The supervisors then took the paper and withdrew some distance from the plaintiff’s agent, and after conferring together for a short time returned, and then and there signed and delivered the paper to the plaintiff’s agent. Viewing the instructions to the jury in the light of these facts, and of the facts recited in the former part of this opinion, we think the case was submitted to the jury upon a wrong theory as to what the plaintiff was bound to prove to make out a prima facie case, and as to what would rebut the prima facie presumption arising from the facts above stated. For example, the jury was instructed that supervisors “ are required to honestly confer together and fairly deliberate in the interests of the taxpayers before they attempt to bind the township by their action.” This unquestionably is the duty of supervisors before attempting to bind the township by a contract of this nature. But when there was coupled with this instruction as to the duty of supervisors the further instruction that “ those who deal with the township supervisors must take care to have the honest judgment of those to whom is intrusted the transaction of the public business,” a heavier burden was put on the plaintiff than the law imposes. The rule upon the subject, as stated in Cooper v. Lampeter Township, 8 Watts, 125, and ever since followed, is, that, in matters of this nature, those who deal with such agents must take care to have the “ express consent of all to whom the law has intrusted the transaction of the public business.”

In the recent case of Austin Manufacturing Co. v. Ayr Township, 31 Pa. Superior Ct. 356, we considered this general subject at some length, and showed by the authorities, first, that the purchase of a road machine by township supervisors is a deliberative, as distinguished from a purely ministerial, act, and is governed by the general rule applying to such acts; second, that one supervisor cannot bind the township for the performance of a contract, the propriety of entering into which is the subject of deliberation and the exercise of judgment, and when the business requires deliberation, consultation and judgment all should be convened, because the advice and opinion of all may be useful, and though they do not unite in opinion, a majority may act when there are more than two ; third, that a written order in the form of a conditional contract for the purchase of a road machine, to which the supervisors, without previous joint consideration or meeting for consultation on the subject, have been induced by the vendor or. his agent to attach their signatures separately, imposes no obligation upon the township to take and pay for it. But under the theory upon which this case was submitted to the jury there is an additional essential to the validity of such a contract, the absence of which will defeat recovery even though the vendor has fully performed his part of the contract. This thought runs through the entire charge, and is very clearly expressed in the affirmance of the defendant’s eighth point, which reads as follows: “The signing of the written order by the supervisors cannot bind the township of Union if the supervisors did not properly deliberate and honestly confer together as supervisors, and if the jury find that the order was signed by the supervisors without proper deliberation and a fair conference in which they exchanged views and interchanged ideas, their action cannot bind the township, and your verdict should be for the defendant.” Whether or not this instruction would be appropriate in an issue between the township and the supervisors, wherein the township seeks to surcharge them for an improvident and inconsiderate exercise of their power, need not be decided in this case. It might be so, and yet be inappropriate in an action between the township and the vendor upon the contract. This distinction was considered and pointed out in the last cited case from which we quote : “ When it is said that this is of a -class of acts requiring consultation, deliberation and judgment, it is not implied that there must be debate or discussion in which every relevant consideration is brought into view; much less that a party who has parted with his property, or done work of which the township has the benefit, upon the contract of the two supervisors acting together, must fail in his action for the price unless he can show that there was such discussion, debate or interchange of views. What is implied is that the two supervisors shall meet in consultation upon the subject, so that there shall be afforded to each the opportunity of expressing to the other and obtaining from the other his advice and judgment upon the question, as well as the facts within his knowledge pertinent thereto.” It results from the foregoing that if all of the supervisors met and consulted together, and then joined in the contract, the other party is not bound to show affirmatively that they did their full duty. If there be no fraud or collusion, and no conduct on his part by which he knowingly induced them to forego that deliberation and the exercise of that judgment and discretion in the interest of the township which the law requires of them, he has a right to act upon the presumption that they did their duty ; he is not bound to be present at their meeting and see that they did : Climax Road Machine Co. v. Allegheny Township, 10 Pa. Superior Ct. 437 ; Austin Mfg. Co. v. Ayr Twp., 24 Pa. Superior Ct. 91. We are of the opinion that these assignments must be sustained.

Judgment reversed and venire facias do novo awarded.