author: Obbady, J.,

text:
    Bobst v. Gring, Appellant.

      Payment — Voluntary payment — Ignorance of law.

    One who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law.
    Argued Nov. 14, 1906.
    Appeal, No. 54, Oct. T., 1906, by defendant, from judgment of O. P. Berks Co., Dec. T., 1902, No. 60, on verdict for plaintiff in case of Samuel Bobst v. Wallace Gring.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Reversed.

      February 25, 1907 :
    Assumpsit to recover money voluntarily paid. Before ErMENTROUT, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $190.31. Defendant appealed.
    . Error assigned among others was in discharging rule for judgment for plaintiff non obstante veredicto.

      Stephen M. Meredith, with him J. Boss Miller, for appellant.
    —When a payment is voluntarily made on an unfounded claim or demand, or in ignorance of the law or legal circumstances of the case, it cannot be recovered back: Finnel v. Brew, 81 Pa. 362; Speise v. McCoy, 6 W. & S. 485; Thomas v. P. & R. R. R. Co., 1 W. N. C. 621; Natcher v. Natcher, 47 Pa. 496.

      W. B. Bechtel, with him II. P. Kaiser, for appellee.
    — The case falls within the authority of Abraham v. Mitchell, 112 Pa. 230.
    The plaintiff may recover back money found to have been obtained from him by duress, extortion, imposition, or taking any undue advantage of his situation: 2 Greenleaf on Evidence, sec. 121; White v. Heylman, 34 Pa. 142.
   Opinion by

Obbady, J.,

The plaintiff, Samuel Bobst, held a public sale of horses, wagons, etc., and pursuant to a previous arrangement sold a horse belonging to Wallace Gring, the defendant, to one Leo Schoetzle. In payment of his purchase Schoetzle gave a promissorynote, dated February 15,1902, for $161, due eight months afterwards “ to the order of Samuel Bobst,” and signed by himself and F. B. Banman. Bobst indorsed the note and delivered it to Gring, who soon thereafter deposited it in a local bank for collection. At its maturity, on October 15th, it was regularly protested for nonpayment. From the testimony of the plaintiff it appears that within a few days he called at the bank and talked with the cashier in regard to the Schoetzle note, as follows: “ Q. What did he say? A. Well, I asked him how it was about these notes; I told him I didn’t owe these notes. Then he says: ‘ Well, I understand the situation, but I would advise you to pay them and sue Gring.’ lie said: ‘ You consult a lawyer before you do that.’ I went right up and saw you (his counsel) then. I asked you whether I should fix up these notes. You (his attorney) said, ‘ Yes ; ’ I went down and paid them and then I came up and sued Gring.” The note was paid on November 5th, and the same day the amount was credited to Gring’s account in the bank. It is clearly established by the evidence that the note was deposited in the bank for collection and not for discount, and that after its protest no inquiry was made by Bobst of Gring or Sehoetzle in regard to its payment before he paid the bank, and it may be conceded that in receiving the money from Bobst the bank was acting as the agent of Gring, and the statements made by the cashier would be' binding upon him.

The plaintiff’s right to recover hinges on a narrow proposition, and can be disposed of upon his own testimony. If the payment was a voluntary one he cannot recover from Gring. The meager conversation with the cashier could not have deceived him. The most that could be said of it is, that it might have inspired an inquiry into the full facts, and this he did not make. While that officer suggested that he pay the bank and then sue Gring, it was no more than a suggestion, and it was at the same time coupled with the direction that he, Bobst, should see his attorney in regard to it before'he did anything. To be advised fully in regard to his rights and liabilities he then consulted with his attorney before he made the payment. Whether he made full disclosure of all the facts is not material, as it is manifest that his conduct was not controlled by what the cashier told him, and he made no further inquiry at the bank or investigation from any source. The general rule is well settled that one who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law: Natcher v. Natcher, 47 Pa. 496; Real Estate Saving Institution v. Linder, 74 Pa. 371; Finnel v. Brew, 81 Pa. 362; Gould v. McFall, 118 Pa. 455 ; Schoenfeld v. Bradford, 16 Pa. Superior Ct. 165.

The parties dispute about several minor phases of the case, but dealing with the plaintiff’s contention as favorably as he makes it by his own testimony, under the decisions, the points submitted by the defendant on the trial below should have been affirmed.

The judgment is reversed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Commonwealth., Appellant, v. Kenney.

      Fish laws — Illegal device — Title of statute — Act of May 29, 1901, P. L. 302. <
    Under the Act of May 29, 1901, P. L. 302, a person may be convicted of fishing with a device consisting of lines attached to umbrella bows stuck in the ground, with two hooks on each line, and a bell fastened to the tip of each bow. In such a case it is immaterial that no game or food fish were found in the possession of the defendant, but only suckers. The title of the act is sufficient to cover such an illegal devise.
    Everything which the nature of the subject of a little of an act reasonably suggests as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated in such title.
    Argued Nov. 14, 1906.
    Appeal, No. 87, Oct. T., 1906, by plaintiff, from order of Q. S. Berks Co., Miscellaneous Docket No. 651, page 326, affirming judgment of justice of the peace in case of Commonwealth v. George Kenney and H. J. Humma.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      William A. Shomo, with him Oliver M. Wolff, for appellant.
    —We submit that the learned court below erred in holding that the defendants had not violated the provisions of the Act of May 29, 1901, P. L. 302, in using devices for fishing which are not permitted by law: Com. v. Seechrist, 27 Pa. Superior Ct. 423; Com. v. Rothermel, 27 Pa. Superior Ct. 648.

      It has been uniformly held by the courts of this state, in a long line of cases, that if the title fairly gives ^notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary: Commonwealth v. Green, 58 Pa. 226; Yeager v. Weaver, 64 Pa. 425 ; Allegheny County Home’s Case, 77 Pa. 77; State Line and Juniata Railroad Company’s App., 77 Pa. 429; Mauch Chunk v. McGee, 81 Pa. 433; Gas and Water Co. v. Downington Boro., 193 Pa. 255; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5.

      Stephen M. Meredith, with him Charles M. Plank, for appellees.
    — It is plainly apparent that the act does not class suckers as either game or food fish; and, although there was not a scintilla of evidence to show that defendants were fishing for anything but suckers, yet appellant would have had the court below and would have this court presume or infer, in order to make out a case, that defendants were fishing for game or food fish instead of for suckers.
    In order to apply such a statute as this, which in its character is penal, it is necessary for the plaintiff to show affirmatively that the defendants are, by the facts of the case, brought within its provisions: Wheeler v. Carpenter, 107 Pa. 271.
    The interpretation is to be most favorable to a person accused of having violated the statute, and a doubt as to the application of the penalty is conclusive in his favor: Schott v. Harvey, 105 Pa. 222; Com. v. Giltinan, 64 Pa. 100; Trainer v. Wolfe, 140 Pa. 279; Com. v. Kriekbaum, 199 Pa. 351; Wheeler v. Carpenter, 107 Pa. 271.
    The strict construction is to be adhered to, even though the court may suspect the legislature to have designed otherwise: Gallagher v. Neal, 3 P. & W. 183; Endlich on Int. of Statutes, secs. 329 and 330; Road in Phœnixville, 109 Pa. 44.
    The provisions of the act of 1901, so far as it relates to any matter other than to game and food fish, is unconstitutional and void; because the subject-matter of the act, as expressed in its title, is game and food fish only: Dewhurst v. City of Allegheny, 95 Pa. 437; Mansfield’s Case, 22 Pa. Superior Ct. 224; Beckert v. Allegheny, 85 Pa. 191; Com. v. Hazen, 207 Pa. 52.

      February 25, 1907:
   Opinion by

Orlady, J.,

An information was made against the defendants for “ fishing with lines attached to umbrella bows, with bells fastened to the tips, contrary to the Act of May 29,1901, P. L. 302.” At the hearing before the justice of the peace it was proven that Humma “ had thirteen hand lines with two hooks attached to each line, each line fastened to an umbrella bow stuck in the ground with a bell fastened to the tip ” ; and that Kenny “ had four lines of the same kind.” The defendants contended that they had not violated the law, “in using the devices with which they were fishing.” They were discharged and an appeal was allowed the commonwealth under the Act of April 17, 1876, P. L. 29; and'after hearing the appeal was dismissed (without reference to the constitutionality of the Act of April 22, 1905, P. L. 284). The evidence showed that the defendants “ had nine suckers between them ” and the learned court below held that because of the title to the act of 1901, which is as follows: “ An act to declare the species of fish which are game fish and the species of fish which are commercially valuable as food, and to regulate the catching and encourage the propagation of the same,” etc., the statute cannot be made to apply to any other species of fish than those which it declares to be either game or food fish, and that all its provisions must relate to the catching, etc., of such; “that it (the title) gives no notice to include anything else, but distinctly excludes from its operation whatever is not therein de* dared to be within the one or the other category; it calls upon everyone to ascertain what is embraced in the statutory definition of game and food fish, and exonerates him from any inquiry concerning what is omitted therefrom.” Carp, catfish, eels and suckers are not in either class of game or food fish, though the time and the manner in which they may be caught is provided for in sections 6, 7, 8, 9, 11 and 31 of the act. Under the arguments of the appellee it would not be necessary to read further into the body of the act than its first section, which classifies and designates certain species of fish as game and food fish, as being specifically within the protection of the act, but this is a more narrow construction than is warranted by our decisions.

The title is to have a reasonable interpretation; and if it fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to its contents, as has often been said: Allegheny County Home’s Appeal, 77 Pa. 77. It is not the purpose or duty of the court to catch at pretexts to avoid legislation, where it can be fairly reconciled with the constitution : Mauch Chunk v. McGee, 81 Pa. 433; Pottstown Borough, 117 Pa. 538; Gas & Water Co. v. Downingtown Boro., 193 Pa. 255. The title is intended to give notice of the legislative intention to affect a right, a power, a remedy, a duty or a liability, and in a manner that those who may be specially interested therein will be clearly invited to examine into the body of the statute: Overseers v. Armstrong County, 11 Pa. Superior Ct. 175; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5; Commonwealth v. Mintz, 19 Pa. Superior Ct. 283. The subject may have but one object while the means necessary for the attainment of that object may necessarily embrace subordinate subjects, differing in their nature and particular effect, yet all contributing to it, and comprised within the principal subject. Everything which the nature of the subject of a title reasonably suggests, as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated by such title: Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Sugar Notch Borough, 192 Pa. 349 ; Commonwealth v. Gilligan, 195 Pa. 504.

The purpose of this act is clearly defined in the very words of the title to be “ to regulate the catching and encourage the propagation of game and food fish,” and these words reasonably invite an inquiry, not only into the number of, the times when, and the methods by which such fish may be lawfully taken, but as well the methods deemed necessary by the legislature to encourage their propagation, and the modification, if any, of former legislation on this subject. The fish excluded from the species of game and food fish enumerated in the act, are either indigenous to our waters or are placed therein by lawful authority and are clearly within legislative regulation. The title substantially, though without particularity, described the subject and purpose of the act, so that everything which reasonably pertains to that subject, is in law suggested by the title. The legislative purpose in regulating the catching and encouraging the propagation of game and food fish cannot be known until every section of the act is read; in such an inquiry, the legislative will in regard to the methods, devices and appliances which may be lawfully used in fishing for other than game and food fish is unequivocally defined; so that the title is not misleading, every section being reasonably indicated through the subject-matter stated in the title. To admit the use of an unlawful device, and at the same time contend that the act was not violated because the fish taken were not of the species of game or food fish is not consistent with the doctrine of the decided cases. We held in Commonwealth v. Bercaw, 30 Pa. Superior Ct. 335, that the words of the section indicate that what the legislature had in min'd was the “ manner ” of fishing. The guilt of the defendants did not depend upon what they caught, but in fishing for either game or food fish with a device not permitted by the act. Since regulation is made effective only through penalties, a title expressing a purpose to regulate implies such penalties: Commonwealth v. Rothermel, 27 Pa. Superior Ct. 648, and cases therein cited.

•The judgment is reversed and a procedendo awarded.


author: Per Curiam,

text:
    Rader, Appellant, v. Kriebel.

      Road law — State highway department — Townships—Contract—Acts of April 15,1903, P. L. 188 and May 1,1905, P. L. 318.
    The Act of May 1, 1905, P. L. 318, does not operate retrospectively so as to affect the obligation of a township in its contract with the state highway department, under the provisions of the Act of April 15, 1903, P. L. 188, to pay one-sixth of the cost of the improvement of a public road in the township, where such contract as well as the contract under which the work was done, were entered into, and the work was begun, before the passage of the act of 1905, although the work under the contract was not fully completed until a few months afterward.
    Argued Dec. 5, 1906.
    Appeal, No. 128, Oct. T., 1906, by plaintiff, from decree of C. P. Montgomery Co., Dec. T., 1905, No. 2, dismissing bill in equity in case of A. M. Rader v. E. G. Kriebel and John K. Metz, Supervisors of Worcester Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.

      ■ Bill in equity for an injunction.
    Swartz, P. J., filed tbe following opinion :
    The township of Worcester made a contract with the state highway commissioner, under the Act of-April 15, 1903, P. L. 188, for the improvement of a public road. Before the road was fully completed the Act of May 1, 1905, P. L. 318, was passed. The bill raises the question whether the township must pay one-sixth of the cost of construction as provided by the act of 1903, or whether the state is entitled to only one-eighth of the cost of said construction as provided by the act of 1905.
    FINDINGS OF FACT.
    1. Worcester township is a township of the second class, and E. G. Kriebel and John K. Metz were the supervisors in the year 1904.
    2. On September 8, 1904, the supervisors of said township and the county commissioners of Montgomery county entered into a contract with the state highway commissioner for the improvement of about two miles of a certain highway in said township of Worcester.
    The agreement was under seal and sets forth that the improvement was recommended by the highway commissioner under the provisions of the act of April 15, 1903. Under this contract the county of Montgomery agreed to pay one-sixth of the total expenses of fhe improvement and the township of Worcester was to pay one-sixth of said expenses.
    3. The state highway commissioner entered into a contract with C. N. Smith & Co. for the construction of tbe highway. This contract was made in the month of September, 1904. Smith & Co. abandoned the work and on December 12, 1904, the work was relet to the township of Worcester.
    4. The work of construction began prior to December 12, 1904, under Smith & Co., and was completed by the township in August, 1905.
    5. No payments of any kind for the construction were made prior to June 20, 1905; all payments made to the contractor were made under warrants drawn by the highway commissioner on the state treasurer as provided by the act of May 1, 1905.

      6. The amount appropriated under the act of 1903, by the legislature was $6,500,000. The unexpended balance undéi said act was $6,356,232.47. The amount appropriated under the act of 1905 was $6,356,232.47.
    7. The bill alleges -that the supervisors of the township are about to pay to the state treasurer the one-sixth part of the entire expenditures for the highway improvement. This allegation is not denied. The defendants do not question the jurisdiction of the court to entertain the cause of complaint.
    8. If the township supervisors must pay according to their contract under the act of 1903, the amount due from them is $2,375.10. If they pay the proportion fixed by the act of 1905, then the amount due from them is but $1,781.32.
    CONCLUSIONS OP LAW.
    1. Equity takes jurisdiction where a taxpayer by bill seeks to restrain the illegal disposition of municipal funds which the taxpayer in common with others will be required to pay.
    2. The defendants are required to pay the proportionate cost of the improvement according to the terms of their contract under the act of April 15, 1903. There is nothing in the act of May 1, 1905, to relieve them from such payment.
    3. The act of 1905 embraces only cases where the improvements are made under the provisions of that act. Payments of expenditures for road improvements are to be made to the state treasurer by the township to the extent of one-eighth of the whole cost when the improvements were made under the provisions of the act of 1905. There is no direction in the act of 1905, that its provisions shall be retrospective. Retroactive laws being in their nature odious it ought never to be presumed that the legislature intended to pass them where the words will admit of any other meaning.
    4. As the defendants propose to do that which the law requires of them, it follows that the bill must be dismissed at the cost of the plaintiff.
    DISCUSSION.
    The parties occupy rather a peculiar position in this case. The supervisors advocate a demand which ordinarily we should expect the commonwealth to assume. We may admit, however, that the supervisors would not undertake to pay the larger sums unless the state demanded it.
    It is not very clear that the supervisors do admit that they intend to pay the sixteen and two-thirds per centum of the highway improvement. The failure to make a direct denial of the allegation in the eighth paragraph of the plaintiff’s bill may be regarded as such admission. If the supervisors are satisfied that they owe the larger sum, then there is no géod reason why they should attempt to withhold the money from the state treasury. It cannot be questioned that a citizen and taxpayer majr proceed in equity to test the validity of the proposed appropriation by the supervisors, where the money to be paid must be raised by taxation or expended from the municipal treasury: Frame v. Felix et al., 167 Pa. 47.
    Does the act of 1905 apply to the contract made between the commonwealth and the township supervisors on September 8, 1904? The act of May 1,1905, both in its title and various sections, declares how highway improvements shall be paid, but it is careful to state that the payment is for costs of highway improvements “ made under the provisions of this act.”
    The improvements made in "Worcester township were not made under the act of 3905. The contract was made under the provisions of the act of April 15, 1903, and the work was done under the latter act. Even the contract for the actual doing of the work was executed in September, 1904, and the subletting to the township of Worcester was entered into as early as December 12,1904. The work of improving the highway was commenced fully seven months before the act of 1905 was passed.
    Under the written contract of September 8, 1904, the commonwealth “ agreed to carry out the recommendation of the State Highway Commissioner and to defray two-thirds of the total expense of such improvement.” The county and the township of Worcester “jointly and severally agree to pay each one-sixth of the total expense of such improvement.”
    There is nothing in the act of 1905 that we discovered that relieves the township from paying according to the terms of its contract. There is no declaration'in the act of 1905 that its provisions are to have á retroactive construction or effect. “ Statutes are prima facia prospective in their operation and. retrospective laws being in their nature odious, it ought never to be presumed the legislature intended to pass them where the words will admit of any other meaning : ” Underwood v. Lilly, 10 S. & R. 97.
    Statutes must be construed to be prospective unless the legislature has expressed in clear and unambiguous terms an intent that they shall act retrospectively or such intent is necessarily implied from the language of the statutes: Thomas’s Election, 198 Pa. 546; Sproul v. Standard Plate Glass Co., 201 Pa. 103.
    It is true that the commonwealth has the undoubted power to pass a retroactive law impairing her own right: Davis v. Dawes, 4 W. & S. 401, but the act must show such intent or purpose before we can give to it the retroactive interpretation.
    That the act of 1903 was repealed by the act of 1905 is quite evident. The later act was intended as a substitute for the earlier statute upon the same subject. It does not follow, however, that the repeal of the act of 1903 destroys the contract made with the supervisors prior to the time of the enactment of the repealing statute. The contract was so far executed that the township received its consideration for the money it had promised to pay. The improvement was fully completed in accordance with the provisions of the act of 1903, although some wort may have been done after the act of 1905 was passed.
    All contract obligations are protected from impairment by the constitution. This constitutional provision extends to contracts made by a state with individuals. When the state becomes a party to a contract, the same rules of law are applicable to her as to private persons under like circumstances: Davis v. Gray, 84 U. S. 203. She can claim her rights under a contract until she relinquishes them. She did not say that for improvements heretofore made she would pay seventy-five per centum of the cost. What she did say by the act of 1905 was, that for improvements made in pursuance of the new act she would pay three-fourths of the costs.
    True, the act of 1903 is repealed, but the state does not require the aid of that act to enforce her claims of sixteen and two-tliircls per centum. She has her contract, and upon this she can sue just as any individual may claim his rights on a subsisting contract.
    The act of 1905, does not save or provide for existing contracts. If it did, we might hold that there was no impairment of the old contracts, because if they are covered by the act of 1905, the remedy of the township is as adequate and efficacious as it is under the act of 1903. Any inadequacy on behalf of the state would be waived by her through the enactment of the new law. The act of 1905, does not pretend to provide for existing contracts under the act of 1903. It follows that if the contract with the supervisors is defeated by the act of 1905, then that contract is necessarily impaired.
    If the contract of September 8, 1904, between the state and the supervisors is not binding upon the parties then there is no obligation on the part of either to pay anything. The agreement of the state to pay two-thirds of the cost of the improvement is an obligation to pay money and, therefore, a contract of the highest nature which the legislature may not impair.
    It is argued that the legislature intended to discharge all existing contracts under the provisions of the act of 1905, because all the money appropriated under the act of 1903, was reappropriated under the act of 1905. In other words, that there is no money to meet the obligation of September 8,1904, unless it is furnished out of the appropriation made by the act of 1905. If we concede the premises, the conclusion may follow. Under the act of 1903, a certain sum was appropriated or apportioned to the county of Montgomery for highway improvements. So much of this fund as was required to meet the obligation of the state in the Worcester improvement “ was applied for ” by the county. The cost of the improvement was expended or specially appropriated by the highway department. The act of 1905 does not pretend to appropriate any money already expended under the act of 1903. In fact there is nothing in the act declaring that any of the money appropriated by the act of 1903, shall be used to meet the requirement of the act of 1905. There is an appropriation of a specific sum under the act of 1905, but its source is not designated. We cannot- assume that the legislature intended to take from the highway department the money specifically set apart to meet the existing obligations of the state. Of course, as already stated, so much of the appropriation of 1903, as was not needed to meet existing contracts fell back into the state treasury to meet any call of the legislature. The old act was repealed and no new expenditures could be made out of the appropriation of 1903. It is a simple business proposition to ask the highway department to discharge its obligations incurred under the act of 1903, out of the funds set apart for that purpose and then pass the balance of the appropriation to the state treasury. Any other method of dealing would work out inequality. The Worcester contract was not promptly executed because of the'default by the original contractors; by the delay, if we adopt the plaintiff’s theory, the township makes a profit.
    February 25, 1907:
    Another township under a later contract, but by prompt action, finished the work before May 1, 1905, and had to pay the larger percentage of the cost of the improvement. This would be a reversal of the rule that the reward is to the diligent rather than the slothful. There was no difficulty in fixing the amount to be retained to meet the Worcester contract. The agreement with the contractor must have fixed the sum to be paid for the road improvement.
    And now, April 20, 1906, the bill is dismissed at the cost of the plaintiff; the prothonotary will enter a decree nisi accordingly and if no exceptions are filed as required by the equity rules, he will enter a final decree as of course.

      Error assigned was decree dismissing the bill.

      Edwin S. Nyee, for appellant.

      Montgomery Evans, with him John M. Dettra, for appellees.
   Per Curiam,

We concur with the learned president judge below in the conclusion, and in his satisfactory opinion in support of it, that it was not the intention of the legislature to have the Act of May 1, 1905, P. L. 318 operate retrospectively so as to affect the obligation of a township in its contract with the state highway department, under the provisions of the Act of April 15, 1903, P. L. 188, to pay one-sixth of the cost of the improvement -of a public road in the township, where such contract as well as the contract under which the work was done were entered into, and the work was begun, before the passage of the act of 1905, although the work under the contract was not fully completed until a few months afterward.

The decree is affirmed, the costs of this appeal to be paid by A. M. Rader, the appellant.


author: Rige, P. J.,

text:
    Nocton, Appellant, v. Pennsylvania Railroad Company.

      Road law — Vacation of streets — Damages—Montgomery county — Acts of May 9, 1871, P. L. 639 and May 16, 1891, P. L. 75.

    The vacation of a highway or street is not an injury to the abutting owners within the provisions of the constitution requiring compensation, and, in the absence of special legislative provision for damages, none can be recovered.
    The Act of May 16, 1891, P. L. 75, contains no express grant to property owners of the right to damages for vacation, nor any clear implication of an intention to make such grant. This being so, the fact that the street was vacated upon the petition of the parties who are benefited thereby cannot change the result.
    The special Act of May 9, 1871, P. L. 639, relating to road law procedure in Montgomery county does not give the right to recover damages for the vacation of roads or streets in that county.
    Argued Dec. 5, 1906.
    Appeal, No. 129, Oct. T., 1906, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1904, No. 82, on verdict for defendant in case of John J. Nocton,k Executor of John J. Nocton, deceased, v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Swartz, P. J.
    From the record it appeared that the jury of view awarded damages to the plaintiff for SI,250 for the vacation of Strawberry alley in the borough of Norristown, and assessed the same against the Pennsylvania Railroad Company. The latter company appealed. At the trial the court directed a verdict for defendant.
    February 25, 1907 :
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in directing a verdict for defendant.

      Henry Freedley, for appellant.

      H. H. Larzelere, with him 0. Henry Stinson, for appellee.
   Opinion by

Rige, P. J.,

It must be accepted as settled law that the vacation of a highway or street is not an injury to the abutting owners within the provisions of the constitution requiring compensation, and in the absence of special legislative' provision for damages none can be recovered: Howell v. Morrisville Boro., 212 Pa. 349. It was decided in the same case that the Act of May 16,1891, P. L. 75, contains no express grant to property owners of the right to damages for vacation, nor any clear implication of an intention to make such grant. This being so, the fact that the street was vacated upon the petition of the parties who are benefited thereby cannot change the result: McGee’s Appeal, 114 Pa. 470; Rockafeller v. Northern Central Ry. Co., 212 Pa. 485.

But it is contended that the act of 1891 includes cases where municipalities were already liable for damages under existing laws, and that there was such liability in Montgomery county under sec. 1 of the special Act of May 9, 1871, P. L. 639, which reads as follows : “ That from and after the passage of this act the court of quarter sessions of Montgomery county, by and with the consent of the town councils, shall have jurisdiction to inquire of, lay out, open, widen, vacate or change any public street, road or alley, within the limits of any incorporated borough in said county, whether the said streets and alleys have heretofore been laid out by commissioners appointed by act of the legislature or otherwise, in the same manner as is provided by law for the laying out, opening, widening, vacating or changing of other public roads within said county; and damages to the owners of land injured thereby shall be assessed as provided under the general road laws of the commonwealth.” The language of this act does not more clearly show an intent to give the right to recover damages for vacation than does the language of the third section of the act of 1891, which is : “ The payment of damages sustained by the making of the improvements aforesaid, or by the vacation of any public highway, may be made either in whole or in part by assessments upon the property benefited by such improvements, as said viewers may determine and the court approve.” It is stated by the appellant’s counsel that Norristown is a borough specially incorporated, and that previous to 1871 no power existed even in the courts to lay out, widen, alter and vacate any street, the court’s power being limited to opening streets laid out by the commissioners when necessity arose. And in the opinion of the learned judge it is stated that in this borough, and several other boroughs of Montgomery county, the streets and alleys were laid out by commissioners appointed by the legislature, that a doubt arose whether the court of quarter sessions had any jurisdiction over the streets so laid out, and to remove this doubt the act of 1871 was passed. He says : “ The sole purpose of the first section of the act was to bring the borough streets of Montgomery county under the general road laws, provided the borough first gave its consent to the proceeding in the quarter sessions.” The special acts applying to boroughs of Montgomery county have not been cited to us, with the exception of the act of 1871, but it seems quite clear from either of these statements of their general effect that the primary purpose of the law was to extend the power of councils and the court with regard to laying out, opening, widening and vacating streets. Having done this, the act goes on to provide that the damages are to be assessed as provided in the general road laws of the commonwealth. But there was no provision in the general road laws of the commonwealth which at that time gave a right to damages for the vacation of a street. The reasoning of Howell v. Morrisville Borough and Daughters of the American Revolution v. Schenley, 204 Pa. 572, leads to the conclusion that the effect of the enactment of 1871 was to supply defieiences and confirm doubtful powers under existing legislation, and perhaps confer new powers upon the court and councils, but not to grant the right to have damages assessed in favor of anyone where the general road laws contained no provisions for the assessment of such damages.

We appreciate the force of the argument of appellant’s counsel based on the supposed parallel between the act of 1871 and the special act of 1858 applying to Philadelphia county, under which it has been held that damages may be recovered for the vacation of a street. But the similarity between the two acts is not such as necessarily to lead to the same construction. In the act of 1858 it is expressly provided “ that it shall be the duty of juries selected to assess damages for the opening, widening or vacating roads or streets within the said city, to ascertain and report to the court, first, what damages the parties claiming the same are entitled to; and second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, widening or vacating any such road or street.” ' This language very clearly implies an intent to grant the right of recovering damages in case of vacation. The right is not made dependent, either expressly or impliedly, upon the provisions of the general road laws of the commonwealth, as it is in the act of 1871. We are constrained to hold that the plaintiff was not entitled to recover, and, therefore, no error was committed in giving binding instructions for the defendant.

Judgment affirmed.


author: Beaver, J.,

text:
    Skean v. Schuylkill Valley Traction Company, Appellant.

      Negligence — Street railways — Passenger—Alighting from car — Moving car — Question for jury.

    In an action by a passenger against a street railway company to recover damages for personal injuries the evidence showed that the car stopped in order to allow the conductor to go ahead, and see whether the track of a steam railroad was clear. Plaintiff testified that the stop was also for a street where she had been in the habit of alighting; she also testified that she was in the act of alighting, with one foot on the lower step of the car, when it moved and threw her to the ground, injuring her. Three witnesses testified that she stepped from the car while it was moving. One of these witnesses had been called by plaintiff. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      February 25, 1907 :
    Argued Dec. 5, 1906.
    Appeal, No. 150, Oct. T., 1906, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1905, No. 24, on verdict for plaintiff incase of Margaret Skean v. Schuylkill Yalley Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass for personal injuries. Before Weand, J.
    The facts appear by the opinion of the Superior Court.
    Yerdict and judgment for plaintiff for $500. Defendant appealed.

      JError assigned was in refusing binding instructions for defendant.
    IV. K. Lamiere, for appellant.

      I. P. Wanger, of Wanger <j> Knife, for appellee.
   Opinion by

Beaver, J.,

Was there anything for the jury in this case ? If there was, the court below was right in refusing any response to the defendant’s point for charge to give binding instructions, and also in refusing to enter a judgment n. o. v. for the defendant.

If the plaintiff’s testimony was true — and whether true or not was equally a question for the jury — it was for them to say whether or not the defendant wcs negligent and the plaintiff was not guilty of contributory negligence.

The defendant’s car, upon which the plaintiff was a passenger, had stopped, in order to allow the conductor to precede it for the purpose of seeing whether or not the track of a steam road, which crossed that of the defendant, was clear. If this were the only purpose for which the car stopped and the plaintiff had knowledge of that fact, there would be undoubted force in the contention of the defendant, but the plaintiff alleges that the stop was also made for Markley street, which was on the same side of the steam railroad on which the car stopped, and not only that the stop was for that purpose, but that she herself had been in the habit of leaving the car at that point, and had given the conductor notice that she wished to stop there, without dissent on his part.

It is true that she was contradicted as to the manner in which she alighted from the car, not only by two witnesses for the defendant, but by one of her own witnesses. These three witnesses concurred in their testimony that she alighted from a moving car. Her testimony, however, was that she was in the act of alighting, with one foot on the lower step of the car, when it moved and threw her to the ground, in consequence of which she sustained the injury for the results of which she sought to recover.

The case was fairly submitted. The court dwelt with absolute fairness upon the weakness of the plaintiff’s case and the strength of that of the defendant. It was not difficult to see that the trial judge was of the opinion, if Jhe had an opinion, that the plaintiff’s case was rather weak, and yet he was so fully convinced that it was not his province to determine the question of fact involved and the credibility of the plaintiff that he left both to the jury, as it seems to us he was bound to do.

There is no difference between the counsel for the appellant and the appellee as to the law of the case. Whilst they differ somewhat as to the manner in which the question is stated, there is really little practical difference between them.

The real question is, was there any testimony in the case which necessarily carried it to the jury ? After a careful reading of the testimony, we think there was.

As to the manner in which it was submitted, the appellant does not, and has no reason to, complain. The verdict was for a moderate amount and there is, therefore, no reason why we should interfere. ■

Judgment affirmed.


author: Rice, P. J.,

text:
    McTaggart’s Bottler’s License.

      Liquor laws — Bottler’s license — Scope of bottler’s license.

    A bottler’s license does not confer the right to sell other intoxicating beverages than those specified in the Act of April 20, 1858, P. L. 365, viz.: cider, perry, ale, porter and beer.

      Argued Dee. 7, 1906.
    Appeal, No. 183, Oct. T., 1906, by George McTaggart, from order of Q. S. March T., 1905, No. 504, revoking a bottler’s license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to revoke bottler’s license.
    Sulzberger, P. J., filed the following opinion:
    This is a rule to revoke McTaggart’s license as a bottler on the ground that he has bottled and sold whiskey, and that such selling is not authorized by law.
    Having paid his license fee of $500 under the Act of July 30, 1897, P. L. 464, he contends that he has acquired the right of bottling liquors of all kinds and selling the same provided that he does not sell less than a quart.
    If mere etymological considerations controlled, there would be force in the contention. The proposition that a bottler is “ one who bottles ” is so direct and simple that it invites acquiescence. But the question cannot be disposed of so summarily. We are not concerned here with the mere shape or material of a vessel in which drink is sold, but with the interpretation of statutes which, on one side at least, are revenue laws, and deal with taxes on venders by whatever name they may be conventionally designated.
    Our modem system of regulating and taxing the liquor traffic in this commonwealth rests on the broad foundation of the Act of March 31, 1856, P. L. 200, entitled “An act to regulate . the sale of intoxicating liquors.” It is a statute drawn with exceptional care, contains thirty-five sections, and was intended and adapted for the restriction of a traffic the suppression of which was earnestly advocated by many citizens. No provision was contained in it regulating or taxing either the manufacture or the possession of liquor of any kind. Vending was the only subject considered. The classification found in the act of 1856, is, therefore, merely a differentiation more or less arbitrary of all venders into several classes by various names, to wit: importers, venders, distilleries, breweries, keepers of hotels, inns and taverns, and keepers of eating houses. All these were subject to license taxes. The thirty-second section of the act, however, dealt especially with a class of venders of liquors by excepting them from the duty incumbent on others of procuring a license. This class was composed of persons “ pursuing exclusively the business of bottler of cider, p.erry, ale, porter or beer, and not at the same time following or engaging in any way in the business of keeping any hotel, inn or tavern, restaurant, oyster-house or cellar, or place of entertainment, amusement or refreshment.” It was “ provided, that such persons shall not sell or deliver said cider, perry, ale, porter or beer in less quantities than a dozen bottles at one time, nor permit any of said liquors to be drank upon the premises occupied in said business.”
    The natural inference from this is that the legislature deemed it for the advantage of the commonwealth to foster the traffic which it thus exceptionally favored. This legislative intent was but an affirmation of a policy initiated five years before. Section 8 of an omnibus bill approved April 14,1851, provided “ that no bottler of cider, perry, or malt liquors, who does not pursue the business of a tavern-keeper, shall be hereafter required to take out a license as a tavern-keeper.” When the act of 1856 was passed, this brief section was naturally deemed insufficient, but the fact that it was expanded into section 32 and that the protection was made unequivocal and sure shows the determination of the legislature to foster the sale of malt liquors in order to displace the use of ardent spirits.
    There is a significant indication of this view in section 3 of the same act of 1856. After providing for the licensing of breweries and distilleries, classified together, there is a proviso that such license shall not authorize sales by them of less than five gallons “except malt and brewed liquors, which maybe bottled and delivered in quantities not less than one dozen bottles.” The distiller was thus denied a privilege granted to the brewer; the minimum established for the brewer’s sale was reduced to about one-fourth the quantity of the distiller’s minimum, though the strength of the latter’s liquor was fifteen times greater.
    “ On April 20, 1858, the legislature passed a supplement to the Act of 1856, P. L. 365. Section 8 of this supplement practically re-enacted the 32d section of the act of 1856, making it, however, a little more explicit by adding the requirement that bottlers shall “ not be otherwise engaged in the sale of intoxicating liquors,” and thus the law stood when the High License Act was passed May 24, 1887, P. L. 194. By sec. 3 of that act'it was provided “ that all bottlers within the commonwealth shall be required to procure license from the court of quarter sessions of the respective counties in -which they are located, in the manner provided for in the second section of tins act, for which they-shall pay the sum of $200 in cities of the first, second and third classes, $100 in all other cities, boroughs and townships: Provided, that no bottler shall be permitted to sell spirituous, vinous, malt or brewed liquors to be drank upon the premises where sold, nor at any place provided by such seller for that purpose.”
    In the light of what has been said this seems clear enough. The word “ bottler ” was not defined, because it needed no definition. The whole class was distinctly identified as already existing ; reference was made to the “ counties in which they are located; ” the fact that they had hitherto paid no license tax is implied by the words used, viz.: “ that all bottlers within the commonwealth shall be required to procure license,” a form of expression radically different from that used concerning the other classes of venders dealt with by the first section of the same act. There the phraseology is “ that all wholesale dealers, brewers, distillers, rectifiers, compounders, storekeepers and agents .... shall pay .... an annual license in cities of the first, second and third classes, the sum of $500. . . .” Not a word is said about their being required to procure license. The legislature was dealing with notorious actual conditions.
    We entertain no doubt whatever that the “ bottler ” of the 'act of May 24, 1887, is the “ bottler ” described in the eighth section of the act of April 20, 1858, namely, a man who bottles and sells cider, perry, ale, porter or beer, and who is not otherwise engaged in the sale of intoxicating liquors.
    As no reference is made in' the act of 1887 to the sale of cider or perry (pear cider) it would appear that all regulation or limitation of the sale of those articles was repealed, and that they may now be dealt in as freely as any other merchandise.
    The only modification of the privileges of the bottler under the act of 1887 was the changing of the minimum sale from one bottle to one quart, which was by the Act of June 9,1891, P. L. 257, raised to twelve pint bottles, thus practically restoring the minimum of the act of 1856.
    Some stress was laid upon the proviso of the Act of 1887, sec. 3, P. L. 194, that bottlers should not “be permitted to sell spirituous, vinous, malt or brewed liquors to be drank upon the premises where sold, nor at any. place provided by such seller for that purpose.” From this the inference was sought to be drawn that the right of the bottler to sell spirituous and vinous liquors was of the same rank as his right to sell malt or brewed liquors.
    The history of the “ bottler ” show's that ever since the act of 1856 this prohibition against allowing any liquors to be drank upon his premises attached to him, and -that the legislature in the act of 1887 was so closely following the act of 1856 that it copied even the anomalous form of the participle “ drank.”
    Moreover, the general office of a “ proviso ” is rather to limit the operation of a statute than to enlarge and extend the privileges thereby conferred. Its effect is “ that of negativing an authority granted beyond its prescribed and clearly defined limits: ” Endlich on the Interpretation of Statutes, sec. 185 ; Commr’s v. Keith, 2 Pa. 218.
    The fair construction of this proviso, therefore, is that the right of the bottler to sell is not enlarged, but that the .prohibition to use his shop as a drinking place is emphasized.
    This view is strengthened by the terms of the Act of June 9, 1891, P. L. 257. By sec. 2 of said act it is prohibited to any brewer or bottler “ to allow any liquors sold by him, her or them to be drunk upon the premises where sold, nor any place provided by such seller for that purpose.” Here, by the collocation with the word “ brewer,” the word “ liquor ” is by inevitable inference limited to brewed or malt liquors, and the purpose of the legislature to prevent bottlers’ shops from becoming drinking places is made clear.
    The contention that bottlers may sell ardent spirits as well as malt and brewed liquors involves another serious difficulty. As the maximum sales are not limited, a bottler may carry on a business as large as a wholesaler, may deal in the same goods and yet pay but half the wholesaler’s tax. This distinction is not satisfactorily explained by saying that the goods of the wholesaler may be contained in wood or glass while in those of the bottler the use of wood is excluded. In taxing venders the commonwealth must be presumed to regard in the main the business transacted and not slight accidental variations of packages to which no significance can be attached.
    February 25, 1907:
    The distinction between the classes concerned becomes clear, however, when in the light of the history of the legislation we regard bottlers as a class favored by the commonwealth for the specific reason that they did not sell ardent spirits but those lighter drinks by the use of which it was hoped to reduce the evils of intemperance.
    We are of opinion that McTaggart violated the law in selling whiskey under his bottler’s licence. As his act was due to a misunderstanding of the law in which many shared, we are disposed to be lenient in punishing him, and the case will therefore stand over until May 31, on which day a proper order will be made.

      Error assigned was the order of the court revoking the license.

      J. Frederick Hartman, with him Samuel P. Tull and Alexander Simpson, for appellant.

      Thomas J. Norris, for appellee, filed no printed brief.
   Opinion by

Rice, P. J.,

Neither the act of 1887, nor the act of 1891, nor the act of 1897 defines affirmatively the privileges which a bottler’s license confers. But the differentiation as'to the fee between that and a wholesale license would, of itself, plainly indicate a substantial difference as to privileges, and we think a more substantial difference than that contended for J)y the appellant’s counsel. In cities of the first and second class the fee is only one-half that for a wholesale license whilst in borough and townships it is considerably larger than the wholesale license fee. From this it might be surmised that the legislature regarded the license, from a pecuniary standpoint, less valuable in cities of the first and second class, and more valuable in boroughs and townships, than the wholesale license. But as the legislation has regulation of the traffic, as well as revenue, for its object, it cannot be declared with certainty that this was the reason for the distinction. It is quite clear, however,that the legislature had in mind two distinct classes of business, and contemplated the granting of privileges suitable to each class. For thirty years and more prior to the high license act of 1887 “ the business of bottler of cider, perry, ale, porter or beer ” had been recognized in legislation relative to the sale of intoxicating beverages, and under certain restrictions could be carried on without license. The Act of May 24,1887, P. L. 194, changed the law in this particular by declaring that “ all bottlers within the commonwealth ” shall be required to take out license. The act did not define the word bottler, but evidently had in view other legislation in pari materia in which “ the business of bottler ” was described. It- had come to be a well understood term in liquor' license legislation, and if the legislature in using the term in this act had intended to give it a broader signification, so as to give the person conducting the business the right to sell all kinds of intoxicating liquors, we think it would have expressed its intention in plain and unequivocal language. The legislation is quite fully reviewed in the opinion of our Brother Orlady in Stambaugh’s License, 31 Pa. Superior Ct. 243, and in the opinion filed by the learned judge below. The question as to the right of an unlicensed person to sell cider and perry, which by fermentation or otherwise has become vinous or spiritous (see Commonwealth v. Reyburg, 122 Pa. 299) does not arise in this case and need not be considered ; but we all concur in the conclusion that a bottler’s license does not confer the right to sell other intoxicating beverages than those specified in the act of 1858. This conclusion is well supported by the opinion filed by the learned president judge below, and we cannot profitably add anything further to the discussion.

The order is affirmed.


text:
    Gearhart, Appellant, v. Gwinn.

      Mines and mining — License to mine coal — Revocation of license — Notice • — Mailing notice.

    A licensor of coal testified in an action of ejectment that he mailed to the licensee the following notice: “You will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of C. The written license in question gave me the authority to terminate the contract at my option and I now terminate it. It may be, when I see you, that we can come to satisfactory arrangements for the future, but, under the present circumstances and conditions, I desire the contract to be at an end.” The licensee claimed that he had never received the notice. It appeared that nothing' was done under the license for more than four years after the date of the notice. The notice was offered for the purpose of establishing the fact that it had been given, but the offer was rejected. Held, (1) that the notice was sufficient to terminate the license notwithstanding the use of the word “desire;” (2) that the question whether the notice was received was, under all the circumstances, for the jury; (3) that the fact that there had been no work done for more than four years after the date of the notice was an important circumstance tending to show that the licensee had abandoned the property; (4) that the copy of the notice offered in evidence for the purpose stated, was properly rejected.
    Where an issue turns upon whether a license to mine coal was in proper form and properly given, the question as to what money was expended by the licensee in the development of the mine, is not relevant, if it appears that this expenditure was a necessary incident of the license.

      Mines and mining — Coal lease — Revocation of lease — Expert—Evidence.

    Where a lessor in a mining lease reserves the right to terminate the lease, whenever in his opinion, “the lessees failed to use due diligence in mining said coal,” the lessees cannot after the lease has been terminated by notice, set up the opinion of an expert as against that of the lessee, that due diligence had been used in mining the coal.
    Argued May 7, 1906.
    Appeal, No. 81, April T., 1906, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1902, No. 278, on verdict for defendants in case of S. C. Gearhart and S. D. McCartner v. Luther Gwinn and Thomas Gwinn.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Ejectment for coal in Read township. Before O’Cosr-ÍTOK, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court admitted G. B. Kuhn to testify, under objection, as to the amount of expense incurred in developing the opening of the mine or drift, which testimony, objection and ruling of the court thereon are as follows :
    “ Q. Can you state how much expense you incurred in the work of developing that opening ? ”
    Objected to as being irrelevant and immaterial.
    The Court: The objection is overruled, an exception noted and bill sealed for plaintiffs. [7]
    “ A. Yes, sir; $325 without my own work and that of my partner; I paid that out in money, cash.”
    Counsel for plaintiffs moved to strike out all the testimony in relation to the cost and expense which Kuhn & Gwinn claimed they were at in connection with the action of trespass brought by Elmer Edmiston, to No. 219, March Term, 1897, it being disclosed from the declaration or statement of claim in that case that the allegation and foundation of the claim in that suit were based upon the alleged trespass of the property of Elmer Edmiston. If that be true, it would have no application to the operations upon this particular property, and for that reason we would move to exclude from this case all the testimony bearing upon the question of cost and expense incident to that trespass and the proceedings had thereunder.
    Motion refused, exception noted and bill sealed for the plaintiffs. [8]
    G. W. Turley, witness on stand. “ Q. Do you know the location of these two pieces of coal leased, the eight-acre piece and the thirty-acre piece ? A. Yes, sir. Q. State whether or not they adjoin ? A. Yes, sir. Q. Do you know whether or not there had been mining operations previously conducted ? A. I do know that it was an abandoned mine; that the coal under this property was worked out, there being nothing there but props, pillars and stumps.”
    Objected to.
    Mr. Kittell: We propose to prove by the witness on the stand that the main body of coal contained in the two pieces of land described in the writ in this case had been previously mined and removed by the Great Bend Coal Company, or some other operator, and that the only coal left available for mining was crop coal, pillars and props ; also that by reason of the location of these two pieces of land and of the improved property along the base of the hill — the buildings, cultivation of lands and private ownership of lands — that the only place where coal could be mined would be upon property owned by the party himself; in order to have an operation of the “coal on this land the present operator must be the owner of the land itself, and that it was impossible to mine any coal from, these two pieces of land from the Van Scoyoc land adjoining, because of the pillars having been driven and the mine allowed to fall in. This for the purpose of showing, in support of our allegation in .our answer, that the defendants used due diligence in the mining operations, and that as soon as it was possible for them to obtain a place to make -an opening they did so.
    Counsel for plaintiffs objected to the offer for the reasons :
    1. That the same is irrelevant, immaterial and incompetent.
    2. That the contract in writing between Judge Bell and G. B. Kuhn and Grant Kuhn specially provided that no stumps or no pillars shall be mined from this property without having obtained the written consent of the lessor.
    3. That the difficulty as to making an opening upon this property is not such a matter as would excuse the defendants in this case, or the persons under whom they claimed to hold the coal in question from pursuing their mining operations with due diligence.
    4. That the testimony of the defendants shows that for' a period of more than four years no operation or attempted operation was made upon this property for the purpose of mining and removing the coal, and it, therefore, becomes a question of law for the determination of this court as to whether due diligence was exercised.
    The Court: Due diligence, like ordinary care, depends upon the circumstances, and while there may be some matters in this offer that are not necessary in order to support the allegation of due diligence, we think that the circumstances surrounding the situation, the difficulty of mining, and unforeseen matters would have some bearing upon the question as to whether or not the defendants made an honest effort to comply with the terms of the lease and would affect the right of the lessor to terminate the lease under the terms of the written contract. We, therefore, overrule the objection, note an exception, and seal a bill for the plaintiffs. [9]
    [The question of due diligence we propose to submit to you; you are to determine that fact from all the circumstances, as shown by the evidence in the case. Notwithstanding that clause in the agreement, Judge Bell could not arbitrarily declare the contract at an end; he would have the right to do so if those persons were not properly mining the coal, or if they were not working at it; but the question Avas for him if they were found guilty of acts, Avhich, under the terms of the agreement, forfeited their rights. If Judge Bell did not see fit to exercise the option the agreement would still be in force at the time he transferred his interest, in 1902, to the plaintiffs in the case, and if it was in force then it would be in force yet, because there had been no action taken which Avould forfeit it since that time.] [1]
    [There is one other matter which is argued by counsel for defendants in support of the position that they were not bound by any action of Judge Bell’s and that the agreement was not canceled, and that is this, that Judge Bell, in his notice or letter, even though it had been received, does not indicate that he takes the action which he declares he takes in that notice or letter, for the reasons that he is authorized to take it, but merely that he desires to annul the contract. If that is all you find is contained in the notice — if that is all the notice they Avould receive — then that would not be sufficient because he had no right to terminate the contract if they were doing all they were required to do under the contract.] [2]
    Plaintiffs presented this 'point:
    4. It appearing from the evidence that Hon. Martin Bell gave notice that he desired to exercise his option to terminate and end the' lease of November 16, 1896, prior to the institution of the present action, and that the defendants having been informed or notified of such intention the verdict should be in favor of the plaintiffs. Answer: If Judge Bell exercised his option under the lease for the reasons mentioned therein authorizing him to do so, and the lessees had notice of it, then the lease was canceled and your verdict would be for the plaintiffs and with that explanation we say, if there was no lease, or no notice of the existence of any lease at the time McCartney took the title from Judge Bell, you will find for the plaintiffs. [3]
    6. If the jury believe from all the evidence that the lessee or the defendants in this suit failed or neglected to mine the coal, which is the subject-matter of the present suit, for a period of more than four years, they would be warranted and justified in finding that there was an abandonment of said lease, and in that case the verdict should be for the plaintiffs. Answer: We do not regard that statement as applicable to this case, for the reason that Judge Bell reserved the right to terminate the lease for certain reasons. If he did not see fit to do so then no one had a right to complain. If he did not choose to exercise the option, but waived the right which he had of exercising the option, though the lessees had not acted and lived up to the agreement, then the agreement was not forfeited or canceled, and we cannot affirm the point as applicable to this case. [5]
    8. The evidence showing that an opening was eventually made in 1902 on the Hopkins lot, which is a part of the Great Bend Coal Company property, by the defendants, that is conclusive proof of the fact that it was practicable to make such an opening there in 1896 and 1897, at which time defendants had an absolute right to make the opening thereon. Answer: We think they had a right to make that opening; of course, a question of damages was involved, and, unless it was a question of means, they could have made it as well in 1897 as in 1902. We recollect that one of the defendants states that it was a question of means with them at the time. You will consider that as bearing upon the question of whether or not there was any notice and as bearing upon the question of the intention of the parties. [6]
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1, 2, 8, 5, 6) above instructions, quoting them; (7-9) rulings on evidence, quoting the bill of exceptions.

      John E. Evans, with him Alvin Evans and E. A. Shoemaker, for appellant.
    — The court below erred in submitting to the jury the question of due diligence. The interpretation of the contract, being in writing, was for the court: Watson v. Blaine, 12 S. & R. 131.
    The court below also erred in that part of its general charge which is made the subject of the second specification of error, in which it is held that the form of the notice was insufficient to convey to the lessees the purpose of the lessor: Dick v. Ireland, 130 Pa. 299.

      M. D. Kittell, for appellee.
    — Equity will not permit a party to take advantage of a contract after a long course of dealing contrary to its terms without notice that thereafter lie intended to enforce his rights : Cogley v. Browne, 11 W. N. C. 224; Wanamaker v. McCaully, 11 W. N. C. 450; Times Co. v. Siebrecht, 11 W. N. C. 283 ; Oliver v. Brophy, 18 W. N. C. 427; Newman v. Rutter, 8 Watts, 51.
    The party claiming to enforce a forfeiture must exercise his right promptly, and it must not be unconscionable : Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235 ; Thompson v. Christie, 138 Pa. 230 ; Lynch v. Gas Co., 165 Pa. 518 ; Steiner v. Marks, 172 Pa. 400; Drake v. Lacoe, 157 Pa. 17; Duffield v. Hue, 129 Pa. 94.
    The right of re-entry might have been enforced upon breach of the condition in the deed, if done at once or within a reasonable time ; but the condition being subsequent, if the breach was acquiesced in by the grantor, and valuable improvements made, a forfeiture of the estate after long delay will not be permitted: Lehigh Coal, etc., Co. v. Early, 162 Pa. 338; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500.
    Where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other : Hatton v. Johnson, 83 Pa. 219.
    It is seldom that equity will enforce a forfeiture even in a clear case, and néver in a doubtful one : Wick v. Bredin, 189 Pa. 83; Murray v. Iron Hall, 9 Pa. Superior Ct. 89.
    There was evidence tending to show that the letter written by Judge Bell, even if mailed, was not received. The courts have decided that it is not the sending but the receipt of a letter that constitutes notice: McSparran v. Insurance Co., 193 Pa. 184; Tanner v. Hughes et al., 53 Pa. 289; First Nat. Bank v. McManigle, 69 Pa. 156 ; Kenney v. Altvater, 77 Pa. 34.
    February 25, 1907:
   Opinion by

Beaver, J.,

A careful analysis of the facts of this case, which are not sufficiently stated by the appellants in their history to give a complete understanding of it, will make easy the application of the few simple legal principles involved.

The action is ejectment for “ the coal known as the ‘ Great Bend coal seam or vein ’ in and under ” two pieces or parcels of land purchased, on December 5,1894, at sheriff’s sale by the Hon. Martin Bell, the surface of which was conveyed by the said Bell to Frederick Bland on May 25, 1899. The coal described in the deed to him as all that certain vein or seam of coal formerly worked by the Great Bend Coal Co.,” was conveyed, February 19, 1902, by the said Bell to S. D. McCartney, one of the plaintiffs, who sold the one-half part thereof, by articles of agreement, to Gearhart, the other plaintiff.

Prior to any of these conveyances, however, Bell had agreed with G. B. Kuhn and Grant Kuhn, by articles of agreement dated November 18, 1896, to “ sell any coal which may remain in the vein formerly mined by the Great Bend Coal Company under ” the two tracts of land above mentioned. In the said agreement, after providing for the - manner in which payment should be made, it is agreed: “ Should default be made in such payments, or should said party of second part, in the opinion of said Bell, fail to use due diligence in mining said coal, then, at the option of said Bell, this agreement to be null, void and at an end.” The interest of the Kuhns under this agreement became, by sundry assignments, vested in the defendants.

The question, therefore, in the case was whether the plaintiffs acquired title to the coal in controversy under their deed, or whether the defendants, under the agreement with the Kuhns, had title thereto.

It appears from the testimony that, after the Kuhns had commenced operations under the lease with Bell, it was discovered that their opening was on the land claimed by one Edmiston. After this discovery, the fact was communicated to Bell by his lessees, who directed them, in case their operations were interfered with by -the sheriff, to cease, and that he would satisfy the docket.

The summons in an action of trespass, brought by Edmiston against Kuhn and other defendants, was served January 27, 1897. The case, as appears by the “ paper of settlement ” in evidence, was settled December 13, 1897.

On January 6, 1898, as appears by the testimony, Bell mailed to G. B. Kuhn a letter, dated January 5, 1898, addressed to Mountaindale, his regular post office, in which Kuhn was notified that Bell would exercise his authority to terminate the written lease to mine the coal under the property of the Great Bend Coal Co., which he had purchased at sheriff’s sale.

No effort seems to have been made by the Kuhns, or their assignees, to resume the mining of coal upon the said premises until in the latter part of 1902 (about six months after the sale to McCartney), when Gwinn, the assignee of the Kuhns, having purchased a lot of ground adjoining the property purchased by Bell, made an entry on it from which the coal in the leased property could be reached.

In the notice of January 5,1898, sent by Bell to G. B. Kuhn, after referring to the fact that he will not be able to get over to Mountaindale before the middle of February, he says: “ In the meantime, you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me the authority to terminate the contract at my option and now I terminate it. It may be, when I see you, that we can come to satisfactory arrangements for the future, but, under the present circumstances and conditions, I desire the contract to be at an end.”

In reference to this notice, G. B. Kuhn, to whom it was addressed, in answer to this question, “ Will you please state whether you received a letter from Judge Bell, bearing date January 5, 1898, or any other date, giving you notice that he terminated the contract of November 18, 1896, said: A. I do not ever remember of getting any letter. It may have been given, but I never got it. Q. During that month of January, 1898, how much of the time were you at home? A. I was at home about every Saturday night during that time. Q. When would you return to your work ? A. On Monday morning; sometimes Sunday afternoon or Sunday evening. Q. I show you a letter which Judge Bell says is a copy of the letter which he mailed to you on the 6th day of January (letter bearing date January 5, 1898); look at that letter, read it. A. I never got the letter.” On cross-examination, the witness said: “ Q. Did you read this (referring to the copy)? A. Yes, sir. Q. Who is it addressed to? A. G. B. Kuhn. Q. By whom ? A. By Martin Bell. Q. And you think it is your recollection that you did not receive the letter? A. That is my recollection, that I never received it.” Later, on re-examination, the witness said: “ I can make a positive statement, I never received any such letter as that.”

The facts in regard to the sending and the failure to receive this letter play an important part in the case and the testimony relating thereto has, therefore, been very fully set forth.

Three of the assignments of error relate to the agreement of Bell with the Kuhns for the lease of the coal and the notice based thereon above referred to, which raise two questions: first, whether or not Judge Bell had the power, under the lease, to terminate the rights of the lessees thereunder, and, second, whether or not the notice was an actual determination of the lease.

In view of the fact that the suit with Edmiston was settled December 18, 1897, and that no effort had been made by the Kuhns during the pendency of the suit and after its settlement, up to the date of the notice — January 5, 1898 — to attempt to mine the coal, there can be no doubt, it seems to us, of the right of Judge Bell to terminate the contract under the option which he reserved therein.

Was the notice which he sent by mail sufficient in itself to terminate the contract? The court left it to the jury to say whether or not the notice actually had that effect, because, although it stated in positive terms, “In the meantime,you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me authority to terminate the contract at my option and I now terminate it,” it ended by saying, “ I desire the contract to be at an end.” The court left it for the jury to say whether or not he did actually annul the contract by this notice, because of the use of the word “ desire.” Taking the notice as a whole, there can be no question as to the effect of it, and the court, the paper being in writing, should have construed it and given positive instruction to the jury as to its meaning, as to which there is no doubt.

The notice was positive in its language and as to the intention of the lessor, and the phrase “ I desire the contract to be at an end ” does not in any way qualify the positive language previously used; indeed, if there had been no other language used except this latter sentence, it would have been completely effective. In a somewhat similar case: Dick v. Ireland, 130 Pa. 299, in which the opinion was written by the present chief justice, it is said: “‘We wish to cancel’ imports nothing in the nature of a request for consent, or deference to the views of the other party. It announces, though in civil phrase, the intention of the writer to exercise his right reserved to him, ‘ as per contract,’ and it does so with a certain appropriateness of language, as, under the agreement, the rescission is not immediate, but is to take effect at the expiration of thirty days. Again, the subsequent phrase, ‘You will please return our bond,’ is not a request, as the master views it. ‘ You will return our bond,’ would certainly be an order, not a request, and there is no difference between the two, except in politeness of phraseology. It is entirely clear that this letter was an absolute and complete rescission of the agreement.” So here, there is no difference between the phrase, “ I desire the contract to be at an end,” and the more formal and decided phrase previously contained in the notice, “The written license in question gave me the authority to terminate the contract at my option, and I now terminate it.” Politeness of phrase, the meaning being clear, should not militate against the party using it.

The only question of fact for the jury in this part of the case was as to the receipt of the notice of the termination of the lease. There may be a question for the jury as to this, under proper instructions, as to the presumptions both of law and fact which arise under all the circumstances attending it. A letter having been shown to be properly mailed, the law presumes its receipt, unless the contrary appears. If it was delivered by the post office authorities to anyone who was in the habit of receiving G. B. Kuhn’s mail, it would be a delivery to him, although he may not, as a matter of fact, have read the notice.

Another important circumstance bearing upon the subject was the fact that nothing was done under the lease for more than four years after the date of .the notice. In the meantime, Judge Bell had sold the coal to one of the plaintiffs. In view of the long delay, not to say neglect, of the Kuhns to do anything under the provisions of their lease, did not Bell have the right to assume that his notice had been received and that, in accordance with its terms, the Kuhns had surrendered their rights thereunder and abandoned the property ?

The first three assignments of error, which are more pr less closely connected with each other and with the questions above stated, as to the right of Judge Bell to terminate the lease under the circumstances, and as to the sufficiency of the notice under which he sought to terminate it, are all sustained.

The fourth assignment of error relates to the admission in evidence of a letter written by Judge Bell, October 1, 1902, in which the notice to terminate the contract with the Kuhns is recited. This was offered for the purpose of establishing the fact that notice had been given. It was not competent for that purpose. Judge Bell was on the stand as a witness and had testified as to the facts relating to that notice. The letter was nothing more than a declaration on his part that the notice had been given. It was properly rejected.

The answer of the court to the plaintiffs’ sixth point for charge, complained of in the fifth assignment of error, seems to assume that the notice of forfeiture, heretofore referred to in connection with the first three assignments, was not an unequivocal exercise of Judge Bell’s option to terminate the lease. We think the point should have been affirmed without qualification, as should also the eighth point for charge, the answer to which is complained of in the sixth assignment of error. Whether or not the Kuhns, or those claiming under them, had the means to carry on the operation had nothing whatever to do with the light of Judge Bell to terminate the lease at his option.

As to the seventh and eighth assignments, the money expended by the Kuhns, or those claiming under them, in the development of the mine, does not seem to us relevant to the issue. This expenditure was a necessary incident of the lease. Edmiston’s interference with their operations was not a material fact bearing upon the issue, because, as seems to be admitted on all hands, that was amicably arranged. The testimony of G. B. Kuhn, therefore, admitted under objection, should either have been rejected, or, after it was admitted, should have been stricken out, in accordance with the motion made by the plaintiffs. The seventh and eighth assignments are, therefore, also sustained.

We are also of opinion that the testimony of the witness Turley was not competent evidence under the defendants’ offer. The effect of it is to allow the testimony of an expert as to whether or not the mining of the coal, provided for in the lease between Bell and the Kuhns, had been pursued with due diligence. This was not the question in the case, or at least if it entered into the case, the question was to be determined by Judge Bell himself, in pursuance of the right which he had reserved to terminate the lease, whenever, in his opinion, “ the lessees failed to use due diligence in mining said coal.” The admission of the testimony complained of, therefore, in the ninth assignment, in the view which we have taken of the case, was erroneous, and it should have been rejected. This assignment is also sustained.

We think we have sufficiently indicated the lines along which this case should be tried. The original lease between Bell and the Kuhns and the notice mailed to G. B. Kuhn by Bell are both in writing. They are to be construed by the court, and the only question of fact involved, as we view the case, at least upon its presentation before us now, was whether or not the notice mailed by Bell was, or should have been, received by the person to whom it was addressed.

Judgment reversed and a new venire awarded.