author: Head, J.,

text:
    McElroy v. Glenn Kline Lumber Company, Appellant.

      Principal and agent — Independent contractor — Evidence.
    Where in an action of assumpsit it is sought to hold the defendant liable on a contract alleged to have been made by an agent, and the undisputed evidence shows that the relation between the defendant and the alleged agent, was under a written contract, and that the alleged agent was in truth and in fact an independent contractor, it is reversible error to submit to the jury the question of agency on evidence to the effect that the defendant had advanced to the contractor moneys in excess of what was due him, that the president of the defendant company had visited the work, had complained of the way in which it was being ■ done, and had given orders which were, however, not obeyed, and that the secretary of the defendant had said after the contractor had quit work that he had a bargain to stand by him financially, but that “when the last bill for labor came in, he had to throw üp his hands.” Bellman v. Pittsburg, etc., Ry. Co., 31 Pa. Superior Ct. 389, distinguished.
    Argued May 11, 1908.
    Appeal, No. 154, May T., 1908, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1905, No. 4, on verdict for plaintiff in case of H. H. McElroy v. Glenn Kline Lumber Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    • Appeal from judgment of justice of the peace. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for' plaintiff for $87.17. Defendant appealed.

      Error assigned amongst others was refusal of binding instructions for defendant.

      Floy C. Jones, for appellant.
    There was no sufficient proof of agency: Singer Mfg. Co. v. Christian, 211 Pa. 534; American Car & Foundry Co. v. Water Co., 218 Pa. 542; Lawall v. Groman, 180 Pa. 532; Whiting v. Lake, 91 Pa. 349; Relief Assn. v. Post, 122 Pa. 579; Long v. Ins. Co., 137 Pa. 335.

      E. 0. Golden, for appellee,
    cited: Bellman v. Ry. Co., 31 Pa. Superior Ct. 389; Stewart v. Climax Road Machine Co., 200 Pa. 611; The Odorilla v. Baizley, 128 Pa. 283; Maynes v. Atwater, 88 Pa. 496; Phillips v. Text Book Co., 26 Pa. Superior Ct. 230.
    October 12, 1908:
   Opinion by

Head, J.,

The right of the plaintiff to recover depended on his ability to prove, by competent and sufficient evidence, that one Metts, who employed him to render the services for which he claims, was the agent of and was acting for the defendant company. The undisputed evidence disclosed that the defendant, a corporation of the city of Pittsburg, had acquired the right to cut the timber from a tract of land in Armstrong county. That it then entered into a written contract with Metts, by the terms of which he agreed to cut, saw and deliver on board cars, or in boats as the defendant might direct, all of the timber on the tract. The timber was to be sawed or hewed in a skillful manner according to specifications and order of the company. The latter was to pay on the 15th of each month for ninety per cent of all lumber delivered, as provided, during the preceding month, at a rate per thousand specified, and the remaining ten per cent was to be held until the completion of the contract.

Had this action been between the parties to that written contract, and had either party, on the evidence in this record, undertaken to set up the relation of principal and agent, we think no one would deny that such a claim would be conclusively answered by the contract itself. There is no evidence that these parties by any affirmative action, ever undertook to modify the relation between them thus established. But the present plaintiff argues that, not having been a party to that contract, he is not thereby precluded from showing such a course of dealing between the defendant and Metts as would warrant the conclusion that the latter, with the knowledge and assent, express or implied of the company, had held himself out to the world as its agent, or that the company itself, by the admissions or acts of its authorized officers, had affirmed the existence of such relation. If the correctness of this proposition be conceded how has the plaintiff discharged the burden he necessarily assumes in taking that position?

Metts, in execution of his contract, procured a saw mill, set it up on the tract, hired the plaintiff and a number of other men and started the work. He was in personal charge, directed the men and his orders were followed. The evidence does not show directly the extent of his financial ability, but as he was able to carry on the work only for a short time, it may be fairly inferred it was not considerable. When the wages of the men became due Metts would send a list of their names with the approximate amount coming to each, excluding fractions of a dollar and sometimes odd dollars, to the office of the company, and it would send up a like number of its checks in the listed amounts, all payable to his order. The aggregate sum of these checks was charged to Metts in his account as against the credits to which he would be entitled as the lumber was delivered. These checks were endorsed by Metts and used in paying his men pro tanto. How the odd balances were paid the record does not show. By the time the work was stopped the company had, in this way; advanced upwards of $1,500 although it owed, under the contract, less than $900.

From these facts the plaintiff argues that the company was doing the work itself and that Metts was but its foreman, notwithstanding the contract to the contrary and the fact that it had no interest, directly or indirectly, so far as the evidence shows, in the saw mill, teams, wagons, and logging outfit' necessary to carry on such work.

It further appears from the testimony that Robert Wolfe, the president of the defendant company, went on two different occasions to the scene of' operations. What he said and did on his first visit is thus stated by Lee Naif, a witness for the plaintiff, whose testimony on this point is considerably stronger than that of the plaintiff himself: “ He countermanded W. J. Metts’ orders, and had us do as he said in cutting logs, in wasting timber. Q. Did. you follow out Wolfe’s instructions? A. No sir. Q. What did he say; if anything, about the Glenn Kline Lumber Co., in these operations? A. He said that W. J. Metts hadn’t the whole thing to do there, that is all he said, that he would not have the timber wasted.” This testimony, so far from proving that Metts was but a foreman, seems to us to strongly corroborate the idea he was an independent contractor, because had he been but a foreman, or had those employed by him believed they were working directly for and under the company, it is hardly possible the orders of its chief would have been received with so little respect.

It further appears that after Metts had quit and the work was stopped, Kestlar, the secretary of the company, came up to the tract and while there made a statement as to which the evidence is conflicting. Taking it as stated by the plaintiff himself “he said that he had a verbal bargain to stand by him (Metts) financially, but when the last bill for labor came in he had to throw up his hands.” Upon this testimony, with some other relating to matters of minor importance not necessary to advert to, the learned trial court felt constrained, on the authority of Bellman v. Pittsburg, etc., Ry. Co., 31 Pa. Superior Ct. 389, to permit the jury to “ take all of that testimony and see from it if you can (find) evidence convincing you that Mr. Metts was the agent or foreman of this corporation; ” and for the same reason refused, after verdict, a motion for judgment for defendant n. o. v. We think that case was radically different from the one now before us. There the record was silent as to the existence of any relation between the company and Staub other than that of principal and agent. It was shown that the company maintained an office in Pittsburg with its corporate name on the door. That Staub “ occupied this office for a long time and appeared to be in charge of' it, attending to the business of the 'company.” That several of the officers and directors had testifled, in another proceeding, “that Staub was their agent.” That after the plaintiff had been employed by Staub and was engaged in securing important rights of way for the company,the vice president of the company, recognizing his employment, wrote to him concerning the work he was doing, and that he frequently reported to Staub in the office, in the presence of stockholders and directors of the company. No other relation having been shown to which such a course of dealing could be referred, this court held a jury might properly and reasonably infer the existence of the relation of principal and agent.

In The Odorilla v. Baizley, 128 Pa. 283, Captain Holland was one of the owners of the vessel. He was the captain referred to in the building contract and the vessel was built for him to sail as master. The construction was superintended by him. When the original contractors failed the plaintiffs refused to proceed with their work unless assured it would be paid for. Captain Cain who, according to the admission of the defendants, was managing owner, directed them to proceed and they would be paid. Captain Holland gave a like assurance and he brought to the plaintiffs orders for the work, sizes, shapes, etc. It did not appear that he had any other interest in the vessel than that common to all the owners. The court held that if all these facts were found the liability of the owners was established and the lien of the debt attached to the vessel under the act of 1836.

In the case in hand it appeared from the written agreement of the parties that Metts was an independent contractor. The genuineness of this agreement was in no way assailed. There was not a particle of evidence that the parties to it ever undertook to enter into any different relation. The acts of the defendant already referred to were in no way inconsistent with the contract relation. Indeed as we have said, to our minds, they rather tend to corroborate the existence of that relation than to prove that Metts was but a foreman.

It not infrequently happens, in the every day transactions of life, that where an owner of property makes a contract for its improvement, he finds it necessary, in the early stages of the work, to furnish to his contractor money in advance of the stipulated payments. If he exhibits some solicitude or takes some pains to see that such money is applied to the payment of wages or material, so as to speed the wTork and save the annoyance of possible litigation over liens or attachments, or if he visits the improvement to see that the specifications are carried out, can it be said that such acts furnish any evidence, or more than a scintilla, that the contractor is the agent of the owner and that the contract is in abeyance? We are unable to give our assent to this proposition and a careful.examination of all the cases cited and many others leads us to the conclusion that there is neither principle nor authority impelling us so to do.

This conclusion in no wise militates against the well established doctrine that he who affirms the existence of an agency is not confined in his proof to direct evidence of a formal appointment but may show such a course of dealing between the parties as would naturally and reasonably lead to an inference of the existence of such agency. But where, as in this case, evidence, that is not disputed, shows that the relation between the parties was created by a written agreement; that the alleged agent was in truth and fact an independent contractor; where there is no evidence of any attempted fraud or deceit and the elements of estoppel are wanting, and where every act of the alleged principal is in harmony with and not contradictory of the relation created by the contract, to permit a jury to convert the independent contractor into an agent, would introduce into the ordinary business affairs of men, an element of danger the consequences of which might be far reaching and disastrous.

Even if the evidence had been sufficient to carry the case to the jury, we think the appellant might well complain of those portions of the charge which constitute the third and fifth assignments of error. But in the view we take of the case they need not be considered. "Upon the whole record we are of the opinion the defendant’s first point should have been affirmed and its motion for judgment n. o. v. should have prevailed.

Judgment reversed.


source: Caselaw Access Project

author: Orlad y, J., Morrison, J.,

license: Public Domain

text:
    Baltimore & Ohio Railroad Company, v. Veltri, Appellant.

      Beneficial associations — Railroad Relief Department — Beneficiaries —Wife—Substitution of beneficiaries — Payment of money into court.

    The member of the relief department of a railroad company, an unincorporated association composed of employees of a railroad company, designated in his application for membership a woman described by him as his wife. As a matter of fact the woman named was not his wife, although she supposed herself to be so. After the death of the member it was discovered that the member had a wife living at the time he went through a form of marriage with the beneficiary named. Both women survived the member and claimed the fund. The railroad company filed an interpleader bill, and paid the money into court. The regulations of the department provided that the beneficiary' or beneficiaries named, if the applicant be married, must be his wife, or his wife and children, and that no one should be entitled to be a beneficiary who is not. the member’s widow, or a relative not more remote than a first cousin._ The member stipulated as follows: “I expressly stipulate that my marriage shall ipso facto have the effect to substitute my wife in the place and stead of the beneficiary named.” Held, (1) that the fund was properly paid into court to be distributed in accordance with the law; (2) That the payment of the money into court by the company was not an acknowledgment of the beneficiary’s right of action; (3) that a decree awarding the fund to the lawful wife was proper.
    Argued April 22, 1908.
    Appeal, No. 195, April T., 1908, by-defendants, from decree of C. P. No. 1, Allegheny.Co., Sept. T., 1907, No. 730, on bill in equity in case of The Baltimore & Ohio Railroad Company v. Maria Yeltri and Maria D’Angelo.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Bill in equity for interpleader. Before MacFarlane, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree of the court in favor of Maria Yeltri.

      J. Garfield Houston, with him William A. Wilson and William Frew, for appellant.
    Only the beneficiary designated in the application has standing to claim death benefits. If the designated beneficiary cannot take, the benefits lapse: Smith v. B. & O. R. R. Co., 81 Md. 412 (32 Atl. Repr. 181); Taylor v. Hair, 112 Fed. Repr. 913.
    Although the beneficiary designated in the application is the only person who can claim death benefits, yet in this case, as between the designated beneficiary and the railroad company, the right is defeasible: Smith v. R. R. Co., 81 Md. 412 (32 Atl. Repr. 181).
    The right to defeat the claim of Maria D’Angelo belongs only to the railroad company and it can waive its right: Taylor v. Hair, 112 Fed. Repr. 913; Alfsen v. Crouch, 89 S. W. Repr. 329; Supreme Tent v. McAllister et al., 132 Mich. 69 (92 N. W. Repr. 770); Schoales v. Order of Sparta, 206 Pa. 11; Maguire v. Supreme Council, 59 N. Y. App. Div. 143; Knights of Honor v. Watson, 64 N. H. 517 (15 Atl. Repr. 125); Johnson v. Knights of Honor, 53 Ark. 255 (13 S. W. Repr. 794); Titsworth v. Titsworth, 40 Kansas, 571 (20 Pac. Repr. 213).
    Payment of the money into court constitutes a complete waiver of the fraud and of the noncompliance with the regulations: Knights of Honor v. Watson, 64 N. H. 517 (15 Atl. Repr. 125); Taylor v. Hair, 112 Fed. Repr. 913; Johnson v. Knights of Honor, 53 Ark. 255 (13 S. W. Repr. 794); Titsworth v. Titsworth, 40 Kansas, 571 (20 Pac. Repr. 213); Maguire v. Supreme Council, 59 N. Y. App. Div. 143; Markey v. Supreme Council, 74 N. Y. Supp. 1069; Tepper v. Royal Arcanum, 61 N. J. Eq. 638 (47 Atl. Repr. 460); Schoales v. Order of Sparta, 206 Pa. 11; Penna. Railroad Co. v. Wolfe, 203 Pa. 269; King v. Beneficial Association, 216 Pa. 553; White v. Turner, 217 Pa. 25; Barner v. Lyter, 31 Pa. Superior Ct. 435; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225; Benefit Fund v. Liberty Castle, 5 Pa. Dist. Rep. 385; Ducksbury v. Supreme Lodge, 12 York, 28.
    The application entitles Maria D’Angelo to the fund: Jones’s Est., 211 Pa. 364; Brown v. A. O. U. W., 208 Pa. 101; Overbeck v. Oberbeck, 155 Pa. 5.

      Owen S., Cecil, for appellee.
    Under the purposes and organization of the relief department as set forth in its regulations, the creation of a fund to be paid to appellant is beyond the powers of the association, would be a fraud upon its other members, and the designation of her as beneficiary is invalid: Fischer v. Am. Legion of Honor, 168 Pa. 279; Murphy v. Nowak, 223 Ill. 301; Britton v. Supreme Council of Royal Arcanum, 46 N. J. Eq. 102 (18 Atl. Repr. 675).
    The designation of Maria D’Angelo as beneficiary is invalid, but this does not render the contract void as to the beneficiary who is entitled to be named, and such beneficiary can recover against the society. That one is entitled who is first in the order in which parties to be benefited are named in charter or by-laws: Clarke v. Schwarzenberg, 162 Mass. 98 (38 N. E. Repr. 17); Arthars v. Baird, 8 Pa. C. C. Rep. 67; Lamont v. Grand Lodge of Iowa Legion of Honor, 31 Fed. Repr. 181; Parke v. Welch, 33 Ill. App. 188; Simon v. O’Brien, 33 N. Y. Supp. 815; Tyler v. Odd Fellows Mut. Relief Assn., 145 Mass. 134 (13 N. E. Repr. 360); Grand Lodge A. O. W. v. Gandy, 63 N. J. Eq. 692 (53 Atl. Repr. 142); Hunter v. Firemen’s Relief, etc., Assn., 20 Pa. Superior Ct. 605; Fodell v. Miller, 193 Pa. 570; Chicago Guaranty Fund Life Soc. v. Wheeler, 79 Ill. App. 241; Lister v. Lister, 73 Mo. App. 99; Masonic Mut. Relief Assn. v. McAuley, 2 Mackey, 70; Supreme Lodge Knights and Ladies of Honor v. Menkhausen, 106 Ill. App. 665.
    But it cannot avail the appellant that the fund does not belong to Maria Veltri. Appellant must show such right in herself: Helsel v. Traction Co., 14 Pa. Superior Ct. 420.
    Rights of the beneficiary become fixed upon death of member, and no subsequent action by society, can modify them: Masonic Mut. Ben. Society v. Burkhart, 110 Ind. 189 (10 N. E. Repr. 79); Fischer v. Am. Legion of Honor, 168 Pa. 279; Masonic Aid Assn. v. Jones, 154 Pa. 99; Maneely v. Knights of Birmingham, 115 Pa. 305; Burst v. Weisenborn, 1 Pa. Superior Ct. 276; Hunter v. Firemen’s Relief, etc., Assn., 20 Pa. Superior Ct. 605; Parke v. Welch, 33 Ill. App. 188; Smith v. Harman, 59 N. Y. Supp. 1044; Grand Lodge A. O. U. W. v. Connolly, 43 Atl. Repr. 286.

      October 12, 1908:
   Opinion by

Orlad y, J.,

In 1889, Vincenzo Greco, while a resident of Italy, was there married to Maria Veltri. Subsequently, he came to the United States, and in 1902 was married to Maria D’Angelo, and with whom he lived as her husband until 1905, when Greco was accidently killed while he was in the employ of the defendant’eompany. In 1904 Greco made an application for and was received into membership in the relief department of the Baltimore and Ohio Railroad Company, by signing an application for full membership, the principal parts of which are as follows:

“I consent and agree to be bound by all the regulations of the Relief Department now in force, and by any other regulations of said Department hereafter adopted applicable to the relief feature. . . . For the purpose of securing the benefits provided by said regulations for a member of Class A, to myself, or in the event of my death, to my wife Maria D’Angelo, or to whomever I may hereafter, from time to time, designate in writing, by way of substitution, with the written consent of the superintendent; or if no such beneficiary be then living, then to my next of kin. I expressly stipulate that my marriage ipso facto, shall have the effect of substituting my wife in the place and stead of the beneficiary named above, to receive such benefits in the evént of my death, if she be then living,' except as to children by a former marriage, who may have a claim as beneficiaries, and in that event my said wife shall have one half of said benefits. I further agree that this application, when accepted by the superintendent, shall constitute a contract between myself and the said company, as a condition of my employment by the company. I further agree that in consideration of the contribution of said company to the relief department, and of the guarantee by it of the payment of the benefits as aforesaid, the acceptance of benefits from the relief department for injuries or death shall operate as a release of all claims against said company, or any company owning or operating its branches or divisions, or any company over whose railroad, right of. way or property the said Baltimore & Ohio Railroad Company shall have the right to run or operate its engines or cars, or send, its employees in the performance of their duty, for damages by reason of such injury or death which could be made by or through me; and that the said superintendent may require, as an additional precedent in the payment of such benefits, that all acts, by him deemed proper or necessary to effect a full release and discharge to said company from any such claim, be done by those who might bring suit for damages by reason of such injury or death. I understand and agree that each of the statements herein contained and each of my answers to the questions asked by the medical examiner, and hereto annexed, shall constitute a warranty by me, the truth whereof shall be a condition of payment of the benefits aforesaid.”

The relief department is not separately incorporated, but all employees of the company are required to become members thereof, and it is provided that the regulations governing the relief department of the railroad company shall supply the place of the by-laws of an ordinary beneficial association. Two of these regulations are as follows:

“Third. The relief feature will afford relief to those members entitled thereto, when they are disabled by injury or sickness, and to their families in the event of their death.”
“ Eighteenth. The beneficiary or beneficiaries named in any application for full membership, if the applicant be married, must be his wife, or his wife and children. No one shall be entitled, as the beneficiary of a member, who is not his widow, or a relative not more remote than first cousin; except in case of an assignment to the superintendent of a natural death benefit, to secure a loan from the saving feature, or in case of the taking of a special natural death benefit for that purpose.”

After the death of Greco, the railroad company ascertained that there were two claimants for this fund, each asserting herself to be the lawful widow of the decedent. The company admitting the genuineness of the contract, and the death of Greco, in ‘ order to avoid interest, costs and expenses incident to threatened litigation at the instance of these parties, filed a bill in equity, in which these claimants were named as defendants, setting out the facts, and its willingness to pay the money to the party justly-entitled thereto, but owing to the dispute it had not been able to do so. To this bill each claimant filed an answer. This appellant, Maria D’Angelo, admitted all the averments contained in the bill and concluded, “I am ready to interplead with Maria Veltri as prayed for in the bill, and to submit myself to the further order of the court.” Whereupon, it appearing to the court that one of the two women was the rightful widow of Greco, it was ordered that the money should be paid into court and “the claimants interplead between themselves; that as between the claimants the court retain further jurisdiction in the cause for making such inquiry as it may deem just and proper as to their conflicting claims.” The case was then heard on the answers of the two defendants and a decree was entered directing the money to be paid to Maria Veltri, as the rightful widow. From this decree the other claimant took this appeal. The claim of each is founded on the application of Greco, and the payment of the fund into court did not add any merit to the right of either. They being the only claimants of the fund, the railroad company did not acknowledge the validity of either claim, but simply and only that one of the two was the rightful claimant. The fund was properly paid into court to be distributed in accordance with the law, under the authority of Fodell v. Miller, 193 Pa. 570; Penna. Railroad Co. v. Wolfe, 203 Pa. 269; Schoales v. Order of Sparta, 206 Pa. 11. Bringing money into court is said to be an admission of a legal demand only, and beyond the amount of the sum brought in, it is no acknowledgment of a right of action; therefore if the plaintiff proceeds further it is at his peril. After the payment of money into court the cause goes on substantially in the same manner as if the money had not been paid in at all. In other words, the defendant is not precluded by it from making a defense which goes to the whole cause of action: 1 Tidd’s Practice, *624, *625; Elliott v. Lycoming County Mutual Insurance Co., 66 Pa. 22. Payment of money into court is no acknowledgment of the plaintiff’s right of action. Whatever may have been the legal consequence of such payment in ancient pleading, no such effect is longer given to it: Hall v. Blackburn, 173 Pa. 310.

It is conceded that Maria D’Angelo had no knowledge of the former marriage of Greco, and it must also be conceded that the railroad company would not have assented to the naming of Maria D’Angelo as the beneficiary if the fact of an earlier marriage had been known. The designation “to my wife, Maria D’Angelo, ” was false in fact, and must have been so known to Greco. The purpose of the contract was not simply insurance, though this feature might well be the object of Greco, but as to the.railroad company, the purpose was to protect the company from litigation at the instance of persons entitled under our statutes to recover in case of death or injury. The application provides for the contingency of an improper or unlawful designation. Maria D’Angelo, while so named, could not be under its very terms designated as the proper beneficiary during the life of Maria Veltri, nor could she, under the facts, maintain an action in her own name under the application, against the railroad company on account of the death of Greco, as she was not his widow, nor “a relative not more remote than first cousin.” Wifehood is as clearly defined a legal state or condition as that of widowhood. Inasmuch as the contract was induced by misstatements of fact, it must be interpreted in the light of.the lcnowdedge demanded by and the information given to the railroad company. There were no qualifying circumstances, and from the relief department’s standpoint, the intended beneficiary, if the applicant be married, must be his wife or his wife and children. Designations do not identify of themselves. They only furnish a means of identification. They give us certain marks or characteristics by the aid of which we may single otit the thing intended from others. Not by the description alone but by that expressed and applied: Willey v. Snyder, 34 Michigan, 60; Hoffman v. Port Huron, 102 Mich. 417.

. The appellant falls short of the designation given by Greco, although mentioned by her own name as his wife. To hold otherwise would frustrate the very purpose of the organization by requiring the company to pay to a mistress, designated as the wife, and at the same time be liable to the lawful widow. The company had undoubtedly the right to demand good faith in the designation of the beneficiary and to stipulate against such a mistake or fraud, in requiring the statement that, “My marriage ipso facto shall have the effect of substituting my wife in the place and stead of the beneficiary named above to receive such benefits in the event of my death, if she be then living. ... No application will be accepted which does not comply with these requirements.” Greco must be conclusively presumed to have knowledge of and be bound by such a reasonable demand, and could not divert the fund through his fraudulent misstatements from the beneficiary required by the railroad company: Fischer v. Am. Legion of Honor, 168 Pa. 279; Compton’s Est., 25 Pa. Superior Ct. 28.

To hold that the fraud which inspired the creation of the fund had been neutralized by the stakeholder paying it into a court of equity, would be putting a premium on such false statements, and the claim of Maria D’Angelo must be maintained, if at all, through these false statements of her paramour. The fund being in a court of equity with the consent of both parties, it must be distributed in accordance with the well-established legal rights of the claimants thereto. The judgment is affirmed.

Morrison, J.,

dissenting:

I have no criticisms to make as to the statements of fact in the majority opinion, but I cannot agree with the legal conclusions therein.

It is agreed on all hands that Greco had a lawful wife in Italy, Maria Veltri, and that she is still living. Therefore, his marriage in this country in 1892 to Maria D’Angelo, the appellant, was illegal, but it is also agreed that the appellant acted in entire good faith supposing that she was the lawful wife of Greco and that her two children, the fruits of her union with him, were legitimate. Upon the conceded facts there can be no doubt that Greco was under a moral obligation to provide for the appellant and her and his children. In 1894, Greco made application and was received into membership in the relief department of the Baltimore and Ohio Railroad Company, by signing an application for full membership, which was accepted in due form by the company. The important parts of the written contract between Greco and the company are correctly quoted in the majority opinion. The application of Greco was “for the purpose of securing the benefits provided by said regulations, for a member of Class A to myself, or in the event of my death, to my wife, Maria D’Angelo, or to whomever I may hereafter from time to time designate in writing by way of substitution, with the written consent of the superintendent; or, if no such beneficiary be then living, to my next of kin (as determined by the laws of the state of Maryland), in accordance with Regulation No. 18 — ■ subject to all the provisions and requirements of said regulations.

“I expressly stipulate that my marriage shall ipso facto have the effect to substitute my wife in the place and stead of the beneficiary named above to receive said benefits in the event of my death, if she be then living, except as to children by a former marriage who may be named as beneficiaries, and in that event my said wife shall have one-half of said benefits.”

Greco continued to live with Maria D’Angelo, as her husband, until 1905, when he was accidentally killed while he was still in the employ of the company. The contract between Greco and the Baltimore and Ohio Railroad Company for benefits was in full force afc the time of his death. Upon the above-conceded facts, Maria Veltri and Maria D’Angelo both claimed the benefit fund, amounting to about $500. It will be noted that by the plain terms of the contract this fund was designated and intended by Greco for Maria D’Angelo. Thé Baltimore and Ohio Railroad Company filed the bill in the present case for an interpleader, naming Maria Veltri and Maria D’Angelo as defendants, and asked and obtained leave of court- to pay the entire fund, less certain costs, into court, and that upon such payment into court, the plaintiff be discharged of all liability to the defendants, Maria Veltri and Maria D’Angelo, in respect of the money so claimed by them. And that an injunction be issued to restrain said defendants, their counsel, solicitors, agents and attorneys, from commencing or prosecuting any further or other action or suit against the plaintiff for or in respect of the said sum of money. The Baltimore and Ohio Railroad Company procured from the court the decree above prayed for, and paid the money into court and withdrew from the controversy. Subsequently the court awarded the fund to Maria Veltri and it is from that decree that this appeal was taken by Maria D’Angelo.

It is conceded on all hands, that if the Baltimore and Ohio Railroad Company had been sued for the benefits and had interposed the false and fraudulent representation of Greco, that Maria D’Angelo was his wife, as a defense, there could have been no recovery because the fraud rendered the contract voidable. I consider it perfectly clear, under the authorities, that neither of these women could have recovered on that contract, if the company relied on the fraud and refused to waive its right to defend. By paying the money into court, however, it seems that the authorities in this state, as well as in many of the sister states, hold that the company waived such defense and that it could not be raised by any other person. In effect, the company, by its action, said to the court, Decree this mbney to the one of these women who is legally entitled to it. As was said by the Supreme Court in Penna. R. R. Co. v. Wolfe, 203 Pa. 269 (see p. 275): “But the relief association wholly withdraws from this contest; it pays the money into court, and in effect says, Wage your war between yourselves, I will have nothing to do with it; so that all the authorities cited on either, side, as to the rights of the claimant against the association, are wholly outside this case.”

The application designated Maria D’Angelo as beneficiary. There is absolutely no provision that in case the named beneficiary is living but is not eligible, that the benefits are to be paid to some other person or perso.ns. It therefore follows that the designated beneficiary, Maria D’Angelo, being alive, must take, or the benefits lapse. Maria Veltri, the lawful wife, has no standing to question their disposition. Smith v. Baltimore & Ohio Railroad Company, 81 Md. 412, was a similar case and in it a similar application and the regulations of the relief department of the Baltimore and Ohio Railroad Company were before the court for construction. The insured ■ had been divorced from his wife. He designated as his beneficiary a certain woman, naming her, and describing her as “my wife.” The woman designated was not the lawful wife of the insured, though they had been living together as husband and wife. On the death of the insured, the named beneficiary being alive, a son of the divorced wife sought to recover as next of kin. Held, that the plaintiff (the son) was not entitled to recover, because the false statement in the application avoided the contract, and also because the plaintiff, not being named as beneficiary, could not maintain the action. The present application provides that the contract is to be construed according to the laws of the state of Maryland. The above case decides that no person other than the named beneficiary, if alive, can claim benefits payable under an application of. the relief department of the Baltimore and Ohio Railroad Company, even if the named beneficiary is debarred. The effect of that decision is that Maria Yeltri has no standing to dispute the claim of Maria D’Angelo, the named beneficiary.

In Taylor v. Hair, 112 Fed. Repr. 913, the court said: “The order may dispose of it (the fund), in accordance with the law óf distribution or otherwise, by a designation of beneficiaries in the constitution of the order; but it can only do this when ..the.application does not show any named beneficiary, and when it directs the benefit to be made payable to the beneficiary designated in such constitution. It is argued that when a person not qualified to take is named as beneficiary, there is, .in legal effect, no person designated. If so, the benefit cannot .go to any beneficiary designated in the constitution of the order without a direction in the application requiring it, and •the benefit must fail.”

Maria D’Angelo is the beneficiary named in the application, and on the death of the insured her right became vested and she is the only person who has standing to claim these benefits. But as between Maria D’Angelo and the railroad company, her right is defeasible on two grounds: 1. Because of .the fraudulent statement of the insured in his application that Maria D’Angelo was his wife. But this fraud only renders the contract voidable at the option of the company: Smith v. B. & O. R. R. Co., 81 Md. 412. But I will cite authorities later showing that the company by paying the money into court waived its right in this respect. 2. Because Regulation 18 provides that if the applicant is married, he must name his wife, or his wife and children, unless the superintendent waives this requirement for reasons satisfactory to him; and that no one shall be entitled as the beneficiary of a member who is not the widow or a relation who is not more remote than a first cousin. This rendered the claim of Maria D’Angelo defeasible if it had not been waived by the company.

It should here be noted that in Smith v. B. & O. R. R. Co., 81 Md. 412, and Taylor v. Hair, 112 Fed. Repr. 913, the defense was not waived, but was insisted upon.

A provision in the by-laws of a beneficial association restricting the designation of a beneficiary to a certain person or class of persons, is inserted for the benefit or protection of the association and can be waived by it. The noncompliance with such a provision in the by-laws is a question that can be raised only by the association, and in any event a mere stranger, such as Maria Yeltri, the other claimant, who is not a member of the association or a party to the contract, cannot raise this objection: 3 Am. & Eng. Ency. of Law (2d ed.), p. 960; Taylor v. Hair, 112 Fed. Repr. 913; Alfsen v. Crouch, 89 S. W. Repr. 329; Supreme Tent v. M’Allister et al., 132 Mich. 69; Schoales v. Order of Sparta, 206 Pa. 11; Maguire v. Council, 59 N. Y. App. Div. 143; Knights of Honor v. Watson, 64 N. H. 517; Johnson v. Knights, 53 Ark. 255; Titsworth v. Titsworth, 40 Kan. 571; Markey v. The Council, 74 N. Y. Supp. 1069; Tepper v. Royal Arcanum, 61 N. J. Eq. 638.

An examination of the above cases will show that where the named beneficiary was not within the class prescribed by the by-laws, the right of the association to pay such beneficiary cannot be questioned by persons who have no certificate and who come into court without any basis for any claim whatever. The cases also hold that such defense can only be interposed by the company and that by paying the money into court the company waived its right to avoid the contract of insurance and defeat the claim of the named beneficiary. I think the following Pennsylvania decisions establish the same principles: Schoales v. Order of Sparta, 206 Pa. 11; Pennsylvania Railroad Co. v. Wolfe, 203 Pa. 269; King v. Beneficial Assn., 216 Pa. 553; White v. Turner, 217 Pa. 25; Barner v. Lyter, 31 Pa. Superior Ct. 435.

But it is contended that the clause in the application above quoted, “I expressly stipulate that my marriage shall ipso facto have the effect to substitute my wife in the place of the beneficiary named above to receive said benefits in the event of my death, if she be then living,” defeats the right of Maria D’Angelo to recover the benefits in this case. I cannot agree with this contention because I think this clause of the application is meant to operate only prospectively, that is, in case of a lawful marriage subsequent to the date of the insurance contract. I discover nothing in the language of this clause indicating that it was to operate retrospectively. I think it was intended to cover cases where the insured was not married at the time of the execution of the contract and where he named, say, his mother or sister or someone else as his beneficiary, and thereafter entered into a marriage contract. In such case, this rule would substitute the wife for the beneficiary named in the contract. Even statutes are never given a retrospective operation unless the language is so clear as to preclude all question as to the intention of the legislature that they should operate retrospectively: Calder v. Bull, 3 Dallas, 386; Taylor v. Mitchell, 57 Pa. 209; Sproul v. Standard Plate Glass Co., 201 Pa. 103; Com. v. Danville Bessemer Co., 207 Pa. 302; White v. Crawford, 84 Pa. 433.

Since the courts have been so careful to prevent statutes from having retrospective force, except in clear cases where the language admits of no other construction, I am not in doubt about the clause in the insurance application, above quoted, having reference only to a future marriage. The application entitles Maria D’Angelo to the fund. If the application and it alone controls the rights in this case, the company having waived its defense, it seems clear, to me, that the words, “my wife, Maria D’Angelo,” can mean only the appellant, Maria D’Angelo. The description “my wife” does not require that the person named answer to this superfluous description: Jones’s Est., 211 Pa. 364; Brown v. A. O. U. W., 208 Pa. 101; Overbeck v. Overbeck, 155 Pa. 5.

Upon the admitted facts in the present case, the company-having paid the money into court and declined to interpose a defense on the ground of the fraud practiced upon it by Greco, the insurance being clearly provided by the contract for Maria D’Angelo, I am of the opinion that as a pure question of law, the learned court erred in decreeing the money to Maria Veltri and refusing to decree it to.the appellant, and I would, therefore, reverse the decree and direct that the legal costs be paid out of the fund and that the residue of the fund be paid to Maria D’Angelo.

Rice, P. J., concurs in the dissent.


author: Porter, J.,

text:
    Califf v. First National Bank of Towanda, Appellant.

      Banks and banking — Checks—Payment of checks — Forgery—Settlement of book.

    The contract between a bank and its customers is to pay the customer’s checks or bills to the person or persons designated by the customer, and to none other, and if a check or bill is payable to order, the banker has only authority to pay it to the payee or to another person who becomes the holder by genuine, or duly authorized indorsement.
    - When a bank pays a check made payable to order and the indorsement is forged or unauthorized, it is the same as if payment had not been made and the amount due to the depositor is not thereby affected.
    On the settlement of his bank book and the return of his checks the depositor is not bound to examine the latter to see that the indorsements are correct. He may assume that the bank has ascertained their genuineness before paying. A bank book settled, balanced up and checks returned to the depositor, will of course become an account stated if not promptly examined and errors of amount pointed out for correction, but the depositor is under no obligation to follow up and ascertain the genuineness of the indorsements that carry the title after the check has left his hands.
    ■ The duty of a depositor whose check has been paid upon an unauthorized indorsement is to give notice with reasonable promptness. All that he need do in any case is to give notice promptly according to the circumstances and usages of the business.

      Principal and agent — Letter of attorney — Scope of agent’s authority— Indorsing check.

    Letters of attorney are strictly interpreted and the authority is never extended beyond that which is given in terms, or that which is necessary and proper for carrying the authority so given into full effect.
    A power of attorney to lease and manage a farm confers no authority on the attorney to indorse a check which has no connection with the business of the farm.
    Argued March 11, 1908.
    Appeal, No. 208, Oct. T., 1907, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1907, No. 183, on verdict for plaintiff in case of John N. Califf v. The First National Bank of Towanda.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    . Assumpsit to recover the amount of a check. Before Fanning, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $383.89. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. C. Ingham, with him William Little, for appellant.
    It is an established principle of commercial law that one claiming a right of action on account of the forgery or other unauthorized use of a negotiable instrument shall give prompt notice to the party against whom such claim is to be made: Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; States v. First Nat. Bank, 203 Pa. 69; Carmalt v. Post, 8 Watts, 406; Rick v. Kelly, 30 Pa. 527; Raymond v. Barr, 13 S. & R. 318; Curcier v. Pennock, 14 S. & R. 51; Ins. & Trust Co. v. Bank, 185 Pa. 586; Leather Manufrs. Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. Repr. 657).

      Chas. M. Culver, for appellee,
    cited: Cunningham v. First Nat. Bank of Indiana, 219 Pa. 310; United Security Life Ins. & Trust Co. v. Bank, 185 Pa. 586; Houser v. Nat. Bank of Chambersburg, 27 Pa. Superior Ct. 613; Clark & Co. v. Savings Bank, 31 Pa. Superior Ct. 647; Hansell v. Downing, 17 Pa. Superior Ct. 235; Estate of The Bank of Pennsylvania, 60 Pa. 471.
    October 12, 1908:
   Opinion by

Porter, J.,

Some time prior to April 6, 1901, one M. C. Decker applied to the plaintiff, who is an attorney at law, for a loan to Mrs. Matilda Brown, the mother-in-law of Decker. Decker was a minister of the gospel and the evidence in this case established nothing which ought to have aroused the suspicion of the plaintiff as to the regularity of the transaction. Being satisfied as to the sufficiency of the land owned by Mrs. Brown, as a security, the plaintiff acting for Mrs. Emily L. Rice, a client, arranged to make the loan taking as security therefor a note with the warrant of attorney to confess judgment. The plaintiff drew such a note and gave it to Decker for the purpose of having it executed. Decker, on April 6, 1901, returned this note, with what purported to be the signature of Mrs. Brown and two subscribing witnesses. The plaintiff thereupon caused judgment to be entered upon the note, paid off certain claims, and mailed to Mrs. Matilda Brown, at her proper address, a letter containing a check on the defendant bank, payable to her order, for $364.74, the amount of the balance of the loan, the check was drawn by the plaintiff upon his own account, as a depositor of the First National Bank, the defendant. This check was presented by M. C. Decker at the Athens National Bank, of Athens, Pa., and by that bank negotiated, Decker indorsing it in this form: “Matilda Brown, per M. C. Decker, attorney in fact,” which indorsement was guaranteed in writing, by the Athens National Bank, upon the back of the check in this form: “Indorsement guaranteed, M. J. Murphy, cashier.” Following this indorsement was the indorsement by the Athens National Bank in this form: “Athens National Bank, Athens, Pa., M. J. Murphy, cashier.” The check thus indorsed was on April 8, presented by the Athens National Bank to the First National Bank of Towanda, the defendant, and was by that bank paid and charged to the account of the plaintiff. The check remained in the possession of the defendant bank until February 14,1902, when the plaintiff’s bank book was written up, balanced and this check, with others, was delivered to him. In the latter part of May, 1903, Mrs. Rice wrote to Mrs. Brown requesting payment of interest on the judgment, and Mrs. Brown replied, saying: “that she did not know what she meant.” Some time in June, 1903, the plaintiff with this letter which had been written by Mrs. Brown to Mrs. Rice and the check in question in his possession went to see Mrs. Brown about the matter and she then told him that she had never received the check and knew nothing about the transaction. The plaintiff on the same day, while on his way home after liis call on Mrs. Brown, called at the Athens National Bank and told the officers of that institution what Mrs. Brown had said. But there is no competent evidence that he at that time reported the matter to the defendant bank. Nothing further was done in the matter until April, 1906, when a writ of scire facias was issued on the judgment. Matilda Brown, on May 7, 1906, presented her petition praying the court to open the judgment, averring that she had never had any dealings with the plaintiff (Mrs. Rice) and had never received any money or property from her, that the petitioner had never given to the plaintiff, or to anyone for the plaintiff, the note upon which the judgment was entered, and that the same was not signed by her nor had she authorized anyone to sign the same for her. Mrs. Rice made answer to the petition, which was filed August 18, 1906. Depositions on behalf of the defendant, in this proceeding to open the judgment, were taken in November, 1906. The plaintiff in the present action, testifies that during the taking of these depositions he became convinced that the contention of Mrs. Brown that she had never authorized the loan and never had received any part of the money arising from the same, was true, and because of that conviction he within a few days called the matter to the attention of the defendant bank. He had exhibited the check to the officers of the bank, asserting that its payment by the bank had been unauthorized and that he was entitled to be paid the amount of the check, and after the negotiations had been carried on for some time, the plaintiff finally, on December 18, 1906, made a formal tender of the check to the bank, presenting his own check, payable to himself, for the amount thereof and demanded that the bank pay him the $364.74. The bank refused payment, and the plaintiff thereupon brought this action and recovered a judgment in the court below. The defendant appeals.

The contract between a bank and'its customer is to pay the customer’s checks or bills to the person or persons designated by the customer, and to none other, and if a check or bill is payable to order, the banker has only authority to pay it to the payee or to another person who becomes the holder by genuine, or duly authorized indorsement: United Security Life Ins., etc., Company v. Bank, 185 Pa. 586. The reason of the rule that when a bank pays a depositor's check on a forged indorsement, or an unauthorized one, it is held to have paid it out of its own funds and cannot charge the payment to the depositor's account, is that there is an implied agreement by the bank with its depositor that it will not disburse the money standing to his credit except on his order: Land Title & Trust Co. v. Northwestern National Bank, 196 Pa. 230. When a bank pays a check made payable to order and the indorsement is forged or unauthorized, it is the same as if payment had not been made and the amount due the depositor is not thereby affected: United Security Life Ins., etc., Co. v. Bank, 185 Pa. 586; Houser v. National Bank of Chambersburg, 27 Pa. Superior Ct. 613; Clark & Co. v. Savings Bank, 31 Pa. Superior Ct. 647. When a depositor seeks to recover the amount of a check which has been paid by a bank upon a forged or unauthorized indorsement, “It is always a good defense that the loss complained of is the result of the complainant’s own fault or neglect, and it will require a statute in very explicit terms to do away with so universal a principle of law founded on so incontestable a principle of justice:” Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46. The evidence in the present case disclosed nothing which would justify an inference of negligence on the part of the plaintiff in the manner in which this check was issued. The check was in proper form- and it was sent in a letter duly addressed to the payee and deposited in the mail. The appellant contends, however, that the plaintiff was negligent in two instances: (1) That when his book was balanced and the check returned to him in February, 1902, he was bound to see that this check did not have the personal indorsement of Mrs. Brown, but only of Decker as her attorney in fact, that this was sufficient to have, excited the suspicions of plaintiff and ought to have caused an immediate investigation by him, and it was negligence not to have made such investigation; (2) that when, in June, 1903, Mrs. Brown told the plaintiff that the check had not been received by her it was the duty of the plaintiff to have at once notified the defendant bank, and that his failure to do so was such negligence as must defeat his recovery. The only assignments of error which touch this branch of the case are based upon the refusal of the court below to give binding instructions in favor of the defendant. If, therefore, the evidence was such as to require the submission of the question of the negligence of the plaintiff to the jury, those specifications of error cannot be sustained.

“On the settlement of his bank book and the return of his checks the depositor is not bound to examine the latter to see that the indorsements are correct. He may assume that the bank has ascertained their genuineness before paying. A bank book settled, balanced up and checks returned to the depositor, will of course become an account stated if not promptly examined and errors of amount pointed out for correction, but the depositor is under no obligation to follow up and ascertain the genuineness of the indorsements that carry the title after the check has left his hands:” United Security Life Ins., etc., Co. v. Bank, 185 Pa. 586. An examination by the plaintiff of the indorsement upon the check in question would have disclosed nothing which the defendant did not already know. The check had not been indorsed by the payee, and did not pretend to be so indorsed. The indorsement was by another, as attorney in fact for the payee, and the authority of that attorney in fact to so indorse was guaranteed by the Athens National Bank. . The plaintiff had no evidence as to the authority of the attorney in fact to indorse which was not already in possession of the defendant bank. He had a right to assume that the bank had ascertained the validity of the indorsement, and that it was a question between the two banks.

When the. plaintiff called on Mrs. Brown in June, 1903, he was not informed by her that she had not authorized Decker, as her attorney in fact, to indorse checks and bills; all that she told him was that she had not received this check. Even if Mrs. Brown did not receive the check, if Decker had authority to indorse it for her, then the indorsement was valid and the payment was good. There was no positive evidence that the plaintiff had acquired information to the effect that Decker was without authority, to indorse, as attorney in fact. The fact that the check had not gone into Mrs. Brown’s personal possession may have been a suspicious circumstance, but if from that circumstance an inference is to be drawn that the plaintiff was negligent in failing to give notice at once, the inference was to be drawn by. the jury and not by the court, as a matter of law. The duty of a depositor whose check has been paid upon an unauthorized indorsement is to give notice with reasonable promptness. “All that he need do in any case is to give notice promptly according to the circumstances and usages of the business, and unless the position of the party receiving the money has been altered for the worse in the meantime it would seem that the date of the notice is not material Iron City Nat. Bank v. Bank, 159 Pa. 46. The plaintiff did communicate to the Athens National Bank, which was liable to the defendant bank upon its. guaranty of the indorsement, the statement which Mrs. Brown had made to him, on the same day that he had received the communication. There was not at the trial in the court below, any attempt made to produce evidence that the position of the First National Bank had been altered for the worse, between June, 1903, and the time of the bringing of this action, because of the failure of the plaintiff to communicate directly to that bank what Mrs. Brown had said. The Athens National Bank which had received the money from the defendant and was liable over, in case the indorsement was without authority, had immediate notice of all the plaintiff knew. We are of opinion that the case, under the evidence, was for the jury: Cunningham v. First National Bank, 219 Pa. 310.

The defendant assigns for error the refusal of the court below to admit in evidence the power of attorney from Matilda Brown to M. C. Decker. This instrument was dated March 17, 1896, and empowered Decker to lease certain lands owned by Matilda Brown, and collect the rents thereof. After at considerable length enumerating the powers conferred, as to leasing for a money rent, or for a share and part of the product, or to give a share of the products of said land for working the same and to make contracts for the farming of said lands, this sentence occurs in the concluding part of the instrument: “ In fact, giving and granting unto my said attorney full power and authority to make such contract and contracts for the farming of the said land as shall seem advisable and best in the opinion of my said attorney; also giving and granting unto my said attorney full power and authority to do and transact any and all business in which I may be interested, giving and granting unto my said attorney, by these presents, power and authority to act for me in the premises as fully and completely as I might do if personally present.” Letters of attorney are strictly interpreted and the authority is never extended beyond that which is given in- terms, or that which is necessary and proper for carrying the authority so given into full effect: Campbell v. Foster Home Association, 163 Pa. 609; Wilson v. Wilson-Rogers, 181 Pa. 80; Union Trust Co. v. Means, 201 Pa. 374; MacDonald v. O’Neil, 21 Pa. Superior Ct. 364. “If authority be vested in the agent in very general terms, but the instrument enumerates certain special objects and acts this specification will be regarded as a limitation upon the general words; and the authority will be confined to action within the scope of the enumerated objects, unless there be some phraseology in the instrument, or some peculiar circumstances, which impress a different purpose upon the instrument:” 1 Daniel on Negotiable Instruments, p. 233, sec. 281. It was held, in Rossiter v. Rossiter, 8 Wendell, 494, that a power of attorney to collect debts, to execute deeds, of land, to accomplish a complete adjustment of all concerns of the principal in a particular place, and to do all other acts which the principal could do in person, conferred no authority on the agent to sign a note in his principal’s name, the general words being limited by the matters specially mentioned. When the agent was authorized to manage certain real estate with the general words extending his power to all property of the principal of every description, and authorizing him “to do all lawful acts concerning all the principal’s business and, affairs of whatever nature or kind soever,” it was held that the agent could not indorse bills in his principal’s name: Esdaile v. LaNauze, 1 Younge & Col. 394. The power of attorney in the present case was offered by the defendant for the purpose of showing that M. C. Decker had authority to indorse the check in question, as attorney in fact for Matilda Brown. The manifest intention of the entire instrument was to vest in M. C. Decker authority to lease and manage the farm of Matilda Brown and the general words above quoted, in the concluding part of the document, must be limited to transactions growing out of the special business to which the instrument refers. The meaning of the letter of attorney was a question for the court, and, standing alone, it was not sufficient for the purpose for which it was offered in evidence. All the assignments of error are dismissed.

The judgment is affirmed.


author: Rice, P. J.-,

text:
    Schmitt’s License.

      Liquor law — Retail license — Certificate of qualified electors.

    Where sixteen persons sign a certificate for a retail liquor license, the fact that four of such persons are not qualified electors within the meaning of the act, is immaterial, if it appears that the other twelve are properly qualified.

      Liquor laws — Revocation of license — Irregularity in certificate — Changing order of court.

    Am. application to revoke a retail liquor license on the ground of the falseness of certain statements made in the certificate signed by twelve qualified electors, is in the nature of an application to open a final order, judgment or decree regular on its face and after due hearing, and the makers of such an application must show that the facts they set up were not known to, or could not have been ascertained by, them prior to the granting and issuing of the license. Such a proceeding is entirely different from that provided by statute for the revocation of a license upon the ground that the licensee had violated a law of the commonwealth relating to the sale of liquor.
    Argued Oct. 13, 1908.
    Appeal, No. 149, Oct. T., 1908, by Louis Wagner et al., from order of Q. S. Phila. Co., March T., 1908, No. 1,183, refusing to revoke retail liquor license In re Thomas A. Schmitt’s Liquor License.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for retail liquor license.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Humbert B. Powell, for appellants.
    The court of quarter sessions of the peace of the county of Philadelphia, upon petition filed, setting forth jurisdictional facts, showing that the holder of a retail liquor license has not complied with the acts of assembly relating thereto and has committed fraud on the court, is obliged to grant a rule on the holder of the said retail liquor license, to show cause why the license should not be revoked and to grant a hearing on the return of said rule: Gross’s License, 161 Pa. 344; Gemas’s License, 169 Pa. 43; Thomas’s License, 169 Pa. 111; McGinley’s License, 32 Pa. Superior Ct. 324.
    The court of quarter sessions of the peace of the county of Philadelphia, upon being duly presented with jurisdictional facts, showing that the holder of a retail liquor license has hot complied with the acts of assembly relating thereto, and has committed a fraud on the court, is obliged to revoke the said license: Forst’s License, 208 Pa. 578; Faulkner’s License, 2 Pa. C. C. Rep. 86; Bosch’s License, 5 Pa. C. C. Rep. 315; Smith v. Wildman, 178 Pa. 245; Campbell’s License, 8 Pa. Superior Ct. 524.

      Martin V. Bergen, Jr., for appellee.
    Appellee contends that this petition is in reality a prayer for a rehearing. That it is not a petition for a revocation under sec. 7 of the Act of May 13, 1887, P. L. 108. That the granting or refusal of this petition for a rehearing by the lower court is under the same rules of judicial discretion as govern applications for a new trial. That its refusal is therefdre entirely within the discretion of the lower court, from which there is no appeal to this court: McGinley’s License, 32 Pa. Superior Ct. 324; Chuya’s License, 20 Pa. Superior Ct. 410; Lauck’s Appeal, 2 Pa. Superior Ct. 53; Alfonso’s License, 11 Pa. Superior Ct. 565.
    November 9, 1908:
   Opinion by

Rice, P. J.-,

The appellee’s application for retail' liquor license complied in form with all the requirements of the act of 1887, and after hearing, at which the appellants appeared or were represented as remonstrants, was granted. The appellants’ petition for revocation of the license and vacation of the decree granting the same was presented nearly two months after the hearing, ■more than two weeks after the license was granted, and a week after the license fee was paid and the license was issued. One 'of the requirements of the statute is that there shall be annexed to a petition for retail liquor license ¿ certificate signed by at least twelve reputable, qualified electors of the ward, borough 'or township in which such liquors are to be sold, setting forth that they have been acquainted with the applicant, and that they have good reason to believe that each and all the statements contained in the petition are true.

1 It is averred in the petition for' revocation, that four of the Signers of the certificate above referred to were not qualified electors, that one of the alleged signers did not in fact sign the ‘petition, and that one of the signers did not reside at the place of residence given by him. We need not take time in discussing these objections, because the certificate was signed by sixteen persons, and apart from the signers to whom these objections apply there were twelve signers to whom they do not apply.

It is further averred, upon information and belief, that some of the signers, naming them, had not been acquainted with the applicant for the license at the time they signed the certificate, and were without good reason to believe that each and all of the statements contained in his petition were true, but that, on the contrary, they did not know of their own knowledge the facts set forth in the first, third, sixth, séventh and eighth paragraphs of his petition. In connection with this averment it is stated, that at least six of the' signers of the certificate “ have admitted to certain of your petitioners that they were not acquainted with the said Thomas A Schmitt, but were introduced to him at the time they signed the said' application or aftérwards.” It is worthy of notice, although our decision is not' put on that ground, that none of the facts set forth in the above-mentioned paragraphs of the appellee’s petition is denied.

It is sought to apply to this case the principles applicable to a proceeding under the statute for the revocation of a license upon the ground that the licensee has violated a law of the commonwealth relating to the sale of intoxicating liquors.' But a moment’s reflection will show the distinction between that sort of a proceeding and a proceeding such as we have before us. The former has its warrant in a provision of the statute which makes it obligatory upon the court to revoke the license upon due proof of certain criminal misconduct of the licensee in the exercise of the special privileges conferred upon him. But a proceeding such as that before us has its sole warrant in the common-law power of the court to change its orders, judgments or decrees during the-term at which they were entered, and, under special circumstances, afterwards. In such a case, if there be no defect in the record, a preliminary inquiry is, whether the party asking the change to be made is in a position to question the correctness of the order or decree he asks to have changed. Particular consideration should be given to this preliminary inquiry, if the party in whose favor the order or decree was made has expended money on the faith of it. Here the petition relates to the truth of the facts averred in the certificate annexed to the appellee’s application for license. That is a matter which was the subject of, or at least open to, inquiry upon the hearing in the license court before the license was granted, and presumably nothing was shown at that hearing to invalidate the certificate. Therefore, the question as presented to us upon this appeal is not whether, if the facts averred in this petition had been proved upon the hearing the court should have refused the license nor whether upon subsequent proof of those facts to the satisfaction of the court it would have had power to revoke the license, after the license fee was paid and the license was issued, but is whether, under the circumstances, the petitioners for revocation had a right to demand a rehearing in order that the truth of the facts contained in the certificate might be reinvestigated. Their petition is in the nature of an application to open a final order, judgment or decree, regular on its face, which was entered after due hearing at which the parties to the suit or proceeding had an opportunity to be heard relative to the matters of fact they allege as the ground of their application. In the absence of a statute governing the matter, such petition, even if presented before the expiration of the term, is addressed to the sound discretion of the court below, and if the well-settled rules regarding rehearings, granting new trials, and opening adverse judgments be observed, it cannot be declared that the court is guilty of an abuse of discretion in refusing the petitioners a rehearing upon those matters of fact, when it is not alleged in their petition that the facts they set up were not known to, or could not have been ascertained by, them prior to the granting and issuing of the license.

The order is affirmed.


author: Per Curiam,

text:
    Kinney, Appellant, v. Citizens’ Building & Loan Association of Philadelphia.

      Affidavit of defense — Insufficiency of statement — Practice, C. P.

    In an action of assumpsit, summary judgment is properly refused where the denials of liability of the affidavit of defense are as specific as the statement of claim, which fails to set forth the character of labor and trouble expended, the amount of personal time consumed, the rate at which compensation was claimed, and the purposes for which money was expended.
    Submitted Oct. 21, 1908.
    Appeal, No. 165, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,516, discharging rule for judgment for want of a sufficient affidavit of defense in case of Robert D. Kinney v. Citizens’ Building & Loan Association of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for services and money expended. Before Martin, P. J.
    The opinion of the Superior Court states the case.

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

      Robert D. Kinney, p. p.

      John B. Rutherford, for appellee.
    November 9, 1908:
   Per Curiam,

The refusal of summary judgment for the disputed items of the plaintiff’s claim is fully vindicated by the opinion of the learned judge below. As he well says: “The affidavit for the purposes of the present argument must be assumed true. Its denials of liability are as specific as the statement of claim, which fails to set forth the character of labor and trouble expended, the amount of personal time consumed, the rate at which compensation is claimed and the purposes for which the money was expended.”

The appeal is dismissed at the costs of the appellant without prejudice to his right of trial by jury, and a second appeal after final judgment.


text:
    Lowenstein, Appellant, v. Bache.

      Appeals — Assignments of error — Failure to assign error.

      ■ Where the record of an appeal to the Superior Court shows that no assignments of error have been filed, the appeal will be dismissed. In such a case the omission is not cured by printing in the appellant’s paper-book what purports to be an assignment.
    The rule of court upon the subject is based on the substantial grounds that assignments of error are an essential part of the pleadings in the appellate court, and that when the case is disposed of and the record returned to the court below, the praecipe, assignments of error and plea thereto are all the papers which usually remain of record in the appellate court, as the basis of its judgment or decree, as the case may be. Therefore the omission to file assignment of errors is not a mere formal defect which the appellate court is at liberty to disregard.
    Argued Oct. 23, 1908.
    Appeal, No. 164, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1907, No. 291, for defendant on demurrer in case of E. Lowenstein v. J. S- Bache et al., copartners, trading as J. S. Bache & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JL
    Appeal dismissed.
    Demurrer to statement in assumpsit.
    November 9, 1908:
   Per Curiam,

It was suggested by appellee’s counsel, when this case was called for argument, that .no assignments of error had been filed; and upon examination of the record this appears to be the case. The omission is not cured by printing in the appellant’s paper-book what purports to be an assignment. The rule of court upon the subject is based on the substantial grounds that assignments of error are an essential part of the pleadings in the appellate court, and that when the case is disposed of and the record returned to the court below, the prsecipe, assignments of error and plea thereto are all the papers that usually remain of record in the appellate court, as the basis of its judgment or decree, as the case may be. Therefore the omission to file assignments of error is not a mere formal defect which we are at liberty to disregard.

The appeal is dismissed at the costs of the appellant without prejudice, however, to his right to trial by jury and a second appeal after final judgment.


text:
    Susquehanna Roofing Manufacturing Co. v. American Tin and Terne Plate Co., Appellant.

      Contract — Sale—Construction of agreement.

    In an action of assumpsit it appeared that the defendant sent to • plaintiff a written order for 1,000 tons of tarred felt of various kinds, the amount of each variety not being given, “to be taken during the year 1905.” Some deliveries were made in pursuance of orders from the defendant. Near the end of the year and before a considerable portion of the tonnage had been ordered by defendant, plaintiff's factory was burned. This fact was at once communicated to defendant with notice that plaintiff would be in a position to fill orders within about six weeks. Defendant thereupon wrote to plaintiff inquiring whether the residue of tonnage should be called at once, or whether orders for it should be held back until plaintiff was again in a position to make prompt shipments. To this inquiry plaintiff made no reply, and the defendant let the year 1905 end without any further shipments. Held, that the defendant had no right to demand any shipments after the year 1905 had expired.
    Argued Oct. 12,1908.
    Appeal, No. 50, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Susquehanna Roofing Manufacturing Co., Inc., v. American Tin and Teme Plate Co., Inc.
    Before Rice, P. J., Porter., Henderson, Morrison, Orlady, Head and Beave?, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    Audenried, J., filed the following opinion:
    The plaintiff sues to recover the sum of $653, the price of sundry rolls of roofing felt delivered to the defendant between May 28 and July 2,1907. The defendant admits its liability to pay for these goods, but claims a set-off in the shape of damages sustained by it through the failure of the plaintiff to comply with a certain contract entered into between these parties on February 18,1905.
    It appears by the affidavit of defense that on the date last named the defendant sent to the plaintiff a written order for 1,000 tons of tarred felt of various kinds, the amount of each variety not being given, “to be taken during the year of 1905.” Shipments were to be made to Philadelphia and the prices to be charged were mentioned in the order. This offer was marked accepted by the plaintiff, which from time to time made shipments under it, upon the request of the defendant, until 178 tons of tarred felt had been delivered. On November 10, 1905, the defendant sent plaintiff an order for the shipment of two carloads of the felt, and a week later ordered fifteen more rolls of it. These orders were never filled by the plaintiff. On December 4, 1905, the coal tar department of the plaintiff's factory was destroyed by fire. This fact was at once communicated to the defendant, with notice that the plaintiff would be in a position to fill orders in about six weeks. On December 6, 1905, the defendant wrote to the plaintiff inquiring whether it should call at once for the residue of the 1,000 tons of felt covered by the contract above mentioned, or hold back its specifications until plaintiff was again in position to make prompt shipments. To this inquiry the plaintiff made no reply, and the defendant let the year 1905 end without demanding further shipments of felt. On January 10, 1906, the defendant asked at what date shipments on account of the contract might be expected. A subsequent inquiry on February 9, 1906, as to the date of shipment of unfilled orders, elicited the reply that the plaintiff would be ready to ship goods in about ten days, but that the deliveries would be made only at advanced prices. The rest of the correspondence set forth in the affidavit of defense is without special significance. On the defendant’s side it consisted of reiterated demands for recognition of its right to call for deliveries under the contract of February 18, 1905, and on the plaintiff’s side it was made up of repeated refusals to admit such a right.
    As it had occasion to use it in supplying its trade, the defendant bought, between January 18, 1906, and April 6, 1906, in the open market, various lots of tarred felt of the kinds mentioned in the contract of February 18,1905. The lots thus purchased were comparatively' small. It is averred that they were bought at the current market prices. It is averred that the cost of the felt bought by defendant in this way exceeded the amount which it would have cost at the prices fixed by the contract by the sum of $1,818, of which the sum of $67.50 represents the difference in the cost of the felt bought by the defendant to take the place of that which it had ordered in November, 1905, and which plaintiff had failed to ship. The defendant asks that it be allowed the amount of the loss thus caused by the plaintiff’s breach of contract and that a certificate be given in its favor against the plaintiff for $1,164.80, with interest thereon.
    The plaintiff concedes that its claim is subject to the set-off of $67.50 in respect of the loss sustained by the defendant through its failure to ship the felt ordered by the defendant in the month of November, 1905. The defendant’s demand for the allowance of any further set-off in respect of losses through the nondelivery by the plaintiff of the full 1,000 tons of tarred felt covered by their contract is resisted; and the court is of the opinion that the defendant had failed to disclose by its affidavit of defense a legal foundation for such a counterclaim.

      If due effect be given to the words “to be taken during the year 1905,” contained in the contract, of February 18, 1905, to the fact that, until specified by the defendant, the plaintiff could not know which of the several varieties of tarred felt referred to in the contract it ought to ship, and to the contemporaneous construction placed upon the contract by its parties in their customary course of dealing, manifested by the correspondence set out in the affidavit of defense, it is plain that the defendant was bound to call for the felt that it desired, or in the words of its letter of December 6,1905,' send in to the plaintiff “specifications against the order,” and that until such specifications, calls or demands were received, the plaintiff was under no duty to make shipments to the defendant. It is manifest, also, that by the terms of the contract the defendant’s right to call for deliveries thereunder did not extend beyond December 31, 1905 and we fail to discover in the defendant’s averments as to the actions of the plaintiff anything from which it can be reasonably inferred that the time for the exercise of the right was enlarged. The fire that destroyed the plaintiff’s tar factory did not, of course, release the plaintiff from the contract. It did not even suspend its duty to deliver when called on by the defendant for goods. Hence, it could not prolong the time within which the defendant might call for deliveries. Consequently, the notice of the fire and the statement that the plaintiff expected to be able to fill its orders in about six weeks, contained in its letter of December 4,1905, could not have such an effect. The goods covered by the contract were standard articles and might readily be obtained in the market. The letter just referred to is not inconsistent with a willingness on the part of the plaintiff to keep its agreement and ship tarred felt when and as called on by the defendant to do so, even if it should have to buy goods from other manufacturers in order to comply with the call. Nor can it be said that the failure of the plaintiff to reply to the defendant’s inquiry of December 6, 1905, gave the latter the right to call on the former for felt after the last day appointed by the contract. The plaintiff was under. no duty to advise the defendant what course it should pursue in its business, and ample time remained between the sending of the letter and the end of the year for the defendant to draw from the plaintiff’s silence, the not unreasonable inference that it had better act on its own judgment as to its requirements.
    In our opinion, the failure of the defendant to demand further deliveries under the contract of February 18, 1905, before the end of that year, absolved the plaintiff from further liability under the contract, and, therefore, its refusal to deliver more felt than had already been called for up to December 31, 1905, was not a breach of. contract on the plaintiff’s part. Accordingly, except with respect to defendant’s loss on the goods ordered from the defendant in November, 1905, and not delivered by the latter, the defense set up cannot be sustained.
    Judgment will be entered against the defendant in favor of the plaintiff for $610.71, that being the amount of the latter’s demand with interest to this date, less an allowance of $67.50 for the loss on defendant’s unfilled orders of November, 1905.

      Error assigned was the order of the court.

      Arthur S. Arnold, for appellant,
    cited: Hocking v. Hamilton, 158 Pa. 107; Dixon v. Breon, 22 Pa. Superior Ct. 340; McCormick v. Ins. Co., 163 Pa. 184; Earley v. Ins. Co., 178 Pa. 631; Hower v. Ins. Co., 9 Pa. Superior Ct. 153; Penn Plate Glass Co. v. Ins. Co., 189 Pa. 255.

      Samuel W. Cooper, for appellee,
    cited: Barr v. Myers, 3 W. & S. 295; Wisecarver v. Adamson, 118 Pa. 53.
    November 9, 1908:
   Per Curiam,

The majority of the judges who heard this case are of opinion that it was correctly decided in the court below for the reasons given by Judge Audenried.

The order is, judgment affirmed.


author: Rice, P. J.,

text:
    Schneider, Appellant, v. Bates.

      Landlord and tenant — Lease—Waiver of appeal — Judgments—Striking off judgment.

    Where a justice’s judgment is founded upon a lease containing an express waiver of appeal the common pleas will, in general, give effect to such waiver by striking off an appeal, if application be made within a reasonable time, and before the appellee has taken steps to bring the case to trial or decision upon its merits. But where the application to strike off is based upon that ground, it must fail, unless the fact that the judgment was founded upon a lease; containing such waiver appears in the justice’s record.

      Landlord and tenant — Holding over — Presumption.
    The presumption of holding over which might arise from the unexplained fact of the nonremoval of the tenant’s goods, may be rebutted by facts which are inconsistent with the presumption.
    Where a tenant notifies his landlord that he will surrender possession of the premises at the end of the term mentioned in the lease, and the landlord agrees that the tenant shall have the right of ingress and egress for an additional day for the purpose of removing his goods, and for that purpose only, and that this shall not be treated as a holding over, the landlord cannot thereafter treat the tenant’s occupancy of the premises for an additional day for the purpose of removing his goods as such a holding over as will render the tenant liable for rent after the term mentioned in the lease.
    Argued Oct. 15, 1908.
    Appeal, No. 248, Oct. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 2,299, discharging rule for judgment for want of a sufficient affidavit of defense in case of Arthur F. Schneider v. William H. Bates and Mary M. Dulin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1) in discharging rule to strike off appeal, and (2) in discharging rule for judgment for want of a sufficient affidavit of defense.

      Benjamin Alexander, for appellant.
    Notice of an intention to terminate a lease at its expiration is of no effect unless such notice be followed by the vacation of the premises by lessee and delivery of possession to the lessor at or before the expiration of the term of lease: Bakewell v. Turner, 36 Pa. Superior Ct. 283; McBrier v. Marshall et al., 126 Pa. 390; Dauphin County v. Bridenhart, 16 Pa. 458; White v. Campion, 1 W. N. C. 130; Walstrom v. Hopkins, 103 Pa. 118; Smith v. Clark, 1 W. N. C. 445,
    The court below erred in discharging the plaintiff’s rule to strike off defendant’s appeal: Rovno v. Lorentz, 32 Pa. Superior Ct. 162.

      Wm. II. Bates, p. p., filed no printed brief.
    November 9, 1908:
   Opinion by

Rice, P. J.,

Where a justice’s judgment is founded upon a lease containing an express waiver of appeal the common pleas will, in general, give effect to such waiver by striking off an appeal, if application be made within a reasonable time, and before the appellee has taken steps to bring the case to trial or decision upon its merits: Rovno v. Lorentz, 32 Pa. Superior Ct. 162. But where the application to strike off is based upon that ground it must fail, unless the fact that the judgment was founded upon a lease containing such waiver appears in the justice’s record: Foss v. Bogan, 92 Pa. 296; Dawson v. Condy, 7 S. & R. 366.

This case came into the court below by appeal' by the defendants from the judgment of a magistrate in an action to recover “850 for one month’s rent' of premises 154 N. 11th St., due April 10, 1907, in advance.”' This is an exact and a' complete statement of- the plaintiff’s demand as shown by the transcript of the magistrate. But it further appears thereby that the following occurred on the trial of the case: “Arthur F. Schneider, plaintiff, sworn for plaintiff, offers in evidence: lease under hand and seal dated December 10, 1905. Containing clause waiving right of exemption laws and right of appeal and the same is admitted.” It will be observed that neither the term granted by the lease offered in evidence, nor the parties by whom it was executed, nor, the premises leased, are stated. For aught that appears the lease may have been offered and admitted in evidence for a legitimate purpose and yet not be the basis of the action. In short, it is not expressly set forth in the magistrate’s record, and' there • is no certain inference from what is set forth, that the plaintiff’s demand was for rent which accrued under a lease containing a waiver of the right of appeal. It follows that the court did not commit error in discharging the plaintiff’s rule to strike off the appeal.

Having failed in the foregoing application, the plaintiff filed a statement of claim, to which the defendants filed affidavits of defense. The question raised by the second assignment of error is as to the sufficiency of the latter.

From the averments of the affidavit of defense and the undenied averments of the statement of claim, we gather the following facts: The term of the lease sued upon was sixteen months from December 10, 1905; therefore it expired at midnight April 9, 1907. Thirty days before the expiration of the. term, in accordance with the provisions of the lease, Bates, who had bought the interest of his co-lessee, and been recognized by the plaintiff as the sole tenant of the property, notified the plaintiff that he would surrender possession of and vacate the premises at the end of the term mentioned, and this was assented to by the plaintiff. At the same time, Bates requested the plaintiff to give him an additional day within which to remove his goods. This request was granted by the plaintiff, and it was the full understanding of both parties that the granting and exercise of this privilege should not extend the tenancy beyond the term. This is the fair interpretation of the averment of the affidavit of defense. The defendant, thereupon, obtained a purchaser for his goods, who removed all of them on the day following the expiration of the lease; but neither he nor the defendant retained possession,, occupancy or dominion over the premises further than was required for the bare removal of the goods therefrom. An occupancy for any given length of time is not necessary to constitute a holding over. Nor is a presumption of a continuance of the tenancy upon the same terms, which ordinarily arises from the tenant remaining in possession after the expiration of the term, overcome by proof of the tenant’s intention merely, nor is it rebutted by proof that he gave notice that he would not hold longer than the term created by the lease. Notice to that effect is of no importance whatever, standing alone, against the act of holding over. See Bakewell v. Turner, 36 Pa. Superior Ct. 283; McBrier v. Marshall, 126 Pa. 390. But the presumption above referred to is not irrebuttal. For example, if the failure to vacate is caused by the wrongful act of the landlord, the tenant will not be subjected to the consequences of a holding over. Again, it has been held that leaving rubbish on the premises is not necessarily such a continued occupancy as continues the tenancy. “The merely leaving some rubbish on the premises, which the appellees allege is all that remained, and which they aver was removed afterwards at the appellant’s request, or indeed the leaving of something more valuable, would not necessarily prove that the appellees were still retaining possession of the premises and keeping the appellants out. The question after all is, were the appellants in any manner excluded?” Cairns v. Llewellyn, 2 Pa. Superior Ct. 599. In another case it was held that the nonremoval of one or two articles does not necessarily continue the tenancy, if the tenant has himself gone out: Thomas v. Frost, 29 Mich. 336. Particularly is this so if the landlord is in no manner excluded. Other illustrations might be given to show that the presumption of holding over, which might arise from the unexplained fact of the nonremoval of the tenant’s goods, may be rebutted by facts which are inconsistent with the presumption. See Campau v. Michell, 103 Mich. 617. So here, if there was an agreement between the landlord and the tenant that the tenancy should end at the expiration of the term, that the tenant should have the right of ingress and egress for an additional day for the purpose of removing his goods, and for that purpose only, and that this should not be treated as a holding over, and should not subject him to the liability which ordinarily ensues from a holding over, it is not clear that the mere fact that the purchaser of the goods did not remove them until April 10, would be conclusive of the question whether there was a holding over within the meaning of the law or of the clause of the lease upon which the appellant relies. In McBrier v. Marshall, 126 Pa. 390, the tenant remained in complete and exclusive possession of the premises after the expiration of the term. That there was a holding over was undisputed, while in the present case, we think, the averments of the affidavit of defense fairly put that fact in issue and entitle the defendants to a jury trial.

The appeal is dismissed at the costs of the appellant without prejudice to his right of trial by jury and a second appeal after final judgment.


text:
    Adams’s License.

      Liquor law — Revocation of license.

    Where a petition for the revocation of a retail liquor license charges in express terms that the respondent sold liquor to minors, naming them, and the order of revocation recites ‘'after rule, answer, and hearing in open court, it appearing that the respondent has violated the law of this commonwealth in relation to the sale of intoxicating liquors, by ■selling such liquor to minors, as charged in the petition upon which this rule was granted,” the appellate court will presume that the lower court admitted, and gave due consideration to evidence offered by the respondent tending to show that he had no knowledge that the persons to whom the liquor was furnished were minors, and that he was not negligent in that particular.
    Argued Oct. 20, 1908.
    Appeal, No. 63, April T., 1909, by W. C. Adams, from order of Q. S. Allegheny Co., March T., 1908, No. 41, revoking retail liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Petition for revocation of retail liquor license.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were (1) order revoking license, reciting the order; (2) in revoking the license of the appellant upon the testimony of witnesses who were not named in the bill of particulars, and of whom the appellant was not notified until the day before the hearing; (3) in revoking the license of the appellant on a finding that appellant “has violated the law of this Commonwealth in relation to the.sale of intoxicating hquors, by selling and furnishing such liquors to minors, as charged in the petition upon which this rule was granted,” when there was no allegation of negligently or knowingly selling or furnishing liquor to minors, especially when appellant set up as a defense lack of knowledge and lack of negligence in the sale of liquors to minors. ., ,

      A. C. Robertson, of Robertson & Link, for appellant.
    The petition and order, strictly speaking, constitute the record: Carlson’s License, 127 Pa. 330. And since neither the petition nor order show negligence or knowledge, and appellant set up as a defense lack of negligence and lack of knowledge of the alleged sales, under the act of 1897, the record thus clearly shows irregularity.

      L. S. Levin, with him W. B. Rodgers, for appellee.
    It is sufficient if a petition substantially states that the laws of the commonwealth have been violated by selling vinous, spirituous, malt or brewed1 liquors to minors: McGinley’s License, 32 Pa. Superior Ct. 324; Sherban v. Com., 8 Watts, 212.
    November 9, 1908:
   Opinion by

Rice, P. J.,

It is argued that as neither the petition nor the order of revocation sets forth that the sales to minors were knowingly or negligently made, the record fails to show or imply that the respondent was charged .with, or was proved to ,have committed, a violation of any law relating to the sale of liquors. The complete answer to this contention is, that in the petition it was charged that the appellant “in the conduct of said licensed house has grossly violated the laws of. the commonwealth .... by selling vinous, spirituous, malt and brewed liquors to the following girls, all minors” (naming them) “and to other minors unknown at this time to your petitioner,” and that in the order of revocation it is recited that “after rule, answer and hearing in open court, it appearing that William C. Adams has violated the law of this commonwealth in relation to the sale of intoxicating liquors, by selling such liquor to minors, ás charged in the petition upon which this rule was granted.” This record leaves no room for inference that the court did not admit, or did not give due consideration to, evidence offered by the appellant tending to show that he had no knowledge that the persons to whom the liquor was furnished were .minors, and that- he was not negligent in that particular. On the contrary, the burden of proof as to these facts being cast upon him by the Act of May 25, 1897, P. L. 93, the presumption from the terms of the order is that he did not establish them by ■ a preponderance of testimony. Therefore the first and third assignments of error are overruled.

It is enough to say with regard to the second assignment of error that it is not based upon anything that appears or can be implied from the record.

The order is affirmed.