author: Morrison, J.,

text:
    Day v. Pennsylvania Railroad Company, Appellant.

      Mechanic's lien — Subcontractor—Notice of intent to file lien.

    Where a written notice by a subcontractor to the owner, of an intention to file a mechanic’s lien has attached to it a copy of the contract between the subcontractor and the contractor, which does not in express terms refer to certain specifications under which the subcontract- , or’s work was done, the notice will not be deemed insufficient, if it appears as a fact that the specifications themselves were in the possession of the owner. Even if the notice were deemed insufficient on this account, an amendment made after trial and verdict which brought the specifications on the record, would cure the defect.
    Where, in such a case, the article supplied by the subcontractor was a patented device composed of various parts of iron, wood, etc., the subcontractor was not bound to set out in his notice an itemized statement of the different articles and materials of the device as a whole.
    The object of the notice is to inform the owner of the demand and the nature thereof, in order that he may require payment of the contractor, or in default thereof withhold the amount from the contract price. A substantial compliance is sufficient, and this is shown to exist whenever enough appears on the face of the statement to enable the owner to ascertain the amount of the claim, its date and the nature and amount of the labor or material out of which it arises. Certainty to a common intent suffices.
    Where on the trial of a scire facias sur mechanic’s lien the evidence is conflicting as to the date when the work was finished and completed, the case is for the jury.
    Argued Dec. 11, 1907.
    Appeal, No. 197, Oct. T., 1907, by the Pennsylvania Railroad Company, from judgment of C. P. No. 3, Phila. Co., Dec.T., 1903, No. 3,883, M, L. D., in case of H. L. Day v. Pennsylvania Railroad Company, Owner, and M. E. Seeley, J. S. Seeley and G. R. Delamatyr, trading as Seeley, Son & Co., Contractors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Von Moschzisker, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $935.07. Pennsylvania Railroad Company appealed.

      Error assigned was in not striking off the lien, and submitting the case to the jury.

      J. Quincy Hunsicker, with him John Hampton Barnes, for appellant.
    — The rule to strike from the record the claim filed in this case should have been made absolute: McFarland v. Schultz, 168 Pa. 634; Chapman v. Faith, 18 Pa. Superior Ct. 578; Guarantee B. & L. Assn. v. Connor, 216 Pa. 543; Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581; Wharton v. Real Estate Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487.
    Another objection set forth in the petition as a cause for striking out the claim, was that the plaintiff failed to comply with one of the requirements of sec. 8 of the said act of assembly, viz.: That the plaintiff, the claimant, shall set forth in the notice and sworn statement, not only the amount alleged to be still due, but how made up and the kind of labor and materials furnished.
    Where work done under a contract is substantially finished and accepted six months prior to the filing of a mechanic’s claim, and extra work is done thereafter to supply a deficiency in the work done under the contract itself, this will not extend the time for filing the lien to six months from the time the said extra work was finished: McKelvey v. Jarvis, Halpin & Co., 87 Pa. 414; Homeopathic Assn. v. Harrison, 120 Pa. 28; Harrison v. Women’s Homeopathic Assn., 134 Pa. 558.

      Harry E. Kohn, for appellee.
    — The alleged insufficiencies of the notice and claim, while superficially plausible, disappear the moment they are regarded in their connection with the circumstances of the case: Thirsk v. Evans, 211 Pa. 239; American Car, etc., Company v. Water Company, 215 Pa. 520; Este v. Pennsylvania Railroad Company, 27 Pa. Superior Ct. 521.
    February 28, 1908:
   Opinion by

Morrison, J.,

This is an appeal by the Pennsylvania Railroad Company, owner, from a judgment on a sci. fa. sur mechanic’s lien in favor of the appellee, a subcontractor. Seeley, Son & Company entered into a contract with the appellant for the erection and construction of a grain elevator. The structure was to be equipped with a certain patented device known as a “ dust collector.” On February 21, 1903, Seeley, Son & Company entered into a written contract with the appellee for the construction and installation of the dust collector complete for the entire sum of $2,124. The appellee averring that he had completed his contract in accordance with its terms and the specifications referred to in the contract, furnished by George M. Moulton & Company, and that the contractors had neglected and refused to pay him for his work and materials, gave notice to the appellant, in writing, duly sworn to, and served on October 30, 1'903, of his intention to file a mechanic’s lien against said grain elevator, etc., to secure a balance alleged to be due appellee of $940.79. In pursuance of said notice, the appellee filed his lien January 15, 1904. As the claim was filed, appellee claimed the additional sum of $168, as alleged under a verbal modification of the written contract and this sum was included in his lien.

A rule was taken to strike the Jien off and, on argument and consideration, the court below made the rule absolute as to the $168 and discharged it as to the balance.

In the opinion of the court refusing to strike off the lien as filed, under the written contract, some doubt is expressed in regard to the failure of the written notice to refer to and give information as to the George M. Moulton & Company specifications referred to in said contract. The learned court, however, held the notice sufficient and refused to strike off the lien for that reason.

While we find several reasons alleged by appellant in the statement of questions involved, assignments of error, argument, etc., for reversing the judgment, they all hinge on the question of the validity of the lien. First as to the specifications of George M. Moulton & Company, they were not in terms made a part of the contract between the appellee and Seeley, Son & Company. The recital in the contract is “ with the dust collecting system according to the specifications of George M. Moulton & Company and the following specifications.” We are not fully convinced that the failure to attach to the lien the Moulton & Company specifications and to set them out in the notice was fatal to the lien. But we need not decide that question because the learned court below permitted the lien to be amended and if said specifications were a material part of the lien, the amendment brought them on the record and cured that defect. That the court had power to grant this amendment we think is clear under the fifty-first section of the Act of June 4, 1901, P. L. 431. That this amendment was not made till after trial and verdict, we do not consider material. It was purely technical and upon the facts we do not think it introduced anything new into the case of which the appellant has cause to complain. It is averred, and not denied, that during all the time the work was being done and the litigation carried on, the appellant had possession of the Moulton & Company specifications and the appellee did not have possession or custody of the same or a copy thereof. Moreover, we understand it to be a conceded fact that the appellee completed the dust collector in accordance with his contract and the specifications, and, therefore, we cannot see how it would have benefited the defendant a particle if the Moulton specifications had been attached to the lien and referred to in the notice to the defendants of the appellee’s purpose to file the lien.

It is contended that the lien is bad because it fails to comply with paragraphs 4, 6 and 8 of section 11 of the act of June 4, 1901. (See p. 436.) But when we take into consideration the fact that the appellee agreed to construct and install a complete dust collector, which was a patent device composed of various articles of wood, iron, etc., and that the appellant was fully advised of the appellee’s claim by the copy of the contract and specifications attached thereto, and reference to the Moulton specifications contained therein, we are inclined to the opinion that the paragraphs referred to were substantially complied with. We cannot agree with the contention that the appellee was bound to set out an itemized statement of the wood, iron, pipes, nails and other material, which went into the construction of the completed dust collector.

We are of the opinion that the notice of the intention to file a lien, dated October 26, 1903, was a substantial compliance with the act of assembly and under the facts it gave the defendant all the notice required: Section 8, Act of June 4,1901, P. L. 431.

It is admitted that the notice served is in the following form:

"To the Pennsylvania Railroad:

“ I hereby give you notice that I intend to file a mechanic’s lien on the grain elevator and curtilege appurtenant thereto, situate at Germantown Junction, Philadelphia, Pa. The amount due to me is $940.79. My claim arises out of a written contract with Messrs. Seeley, Son & Company, contractors, a copy whereof is hereto attached and made part hereof, my obligations in said contract having been fully performed by me. The said sum is made up of the contract price therein recited, to wit, $2,124 (together with the further sum of $168, as the reasonable cost of testing and altering the work done under the aforesaid contract).

“ There has been paid to me by the contractors the sum of $1,351.21, leaving the aforesaid sum of $940.79 still due and payable to me. The labor and materials furnished for the said grain elevator by me were such as are necessary in the erection of the patented dust collector, which formed the subject matter of the aforesaid contract. The last work done and materials furnished in and about the erection of the said dust collector, were done and furnished August 7, 1903. (Signed) H. L. Day.”

This notice was duly sworn to on October 26, 1903, and served on October 30, 1903. When we remember that the appellee’s contract was attached to this notice, and that it simply referred to the specifications of George M. Moulton & Company, and that they were not made a part of the contract, and that they were at all times in the custody of the appellant, we think this notice is sufficient.

The case was tried on its merits rand the jury found, on sufficient evidence, all of the essential facts entitling the appellee to recover. We do not understand it to be contended that the amount of the verdict and judgment is not justly due and owing to the appellee, and it is conceded that he could not collect the same from Seeley, Son & Company.

The most serious question raised at the trial, was whether the dust collector was finished and completed prior to July 30, 1903, or was it not so completed till August 7, 1903. If it was completed at and before the former date, then the sworn statement of notice, served October 30, 1903, was too late and the lien was invalid, but if the work done up till August 7, 1903, was a necessary part of the construction of the dust collector, then the notice was in time and the lien filed in pursuance thereof was valid. This question was squarely raised by points presented by defendant’s counsel, and the jury was carefully instructed as to the law, and that the lien could not be sustained and the verdict must be for the defendant if the work done in August, “was not done in and about the erection and construction of the dust collecting system, but was done in changing or altering the work already done and put in so as to make the system operate as a completed work, then your verdict ought to be for the defendant.” Under the evidence, this question was for the jury: Holden v. Winslow, 18 Pa. 160; Driesbach v. Keller, 2 Pa. 77.

We do not consider the alleged insufficiencies of the notice and claim as presenting any substantial difficulty. “The object of the notice is to inform the owner of the demand and the nature thereof, in order that he may require payment of the contractor, or in default thereof withhold the amount from the contract price:” Thirsk v. Evans, 211 Pa. 239. All the cases agree that a substantial compliance is sufficient, and this is shown to exist whenever enough appears on the face of the statement to enable the owner to ascertain the amount of the claim, its date, and the nature and amount of the labor or material out of which it arises: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521. In American Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520, a lien was filed by a subcontractor and it was striken off by the court below. In reversing the judgment and reinstating the lien much was said by the Supreme Court that applies to the case in hand (see p. 525): “ But all the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the way to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without in fact, adding anything to the security of the parties having an interest in the building sought to be incumbered. Certainty to a common intent has, therefore, always been held to suffice.” The doctrine of that case and several others, construing the act of 1901, we think, upholds the lien in the present case. We are at a loss to see what additional knowledge or benefit the appellant would have derived if the court below had required a strict compliance with all of the extremely technical points raised by counsel for appellant. If the court below had adopted the counsels' views and struck the lien off, it would, we think, have been error. It is well to note that this is a contest between the subcontractor and owner, and that no lien creditor is questioning the validity of the mechanic’s lien.

We do not find any reversible error raised by the several assignments and they are all dismissed and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    First National Bank of Sayre v. Bartlett, Appellant.

      Judgment — Judgment note — Demand —Precedent demand.

    A judgment note payable on demand may be entered up without a precedent demand and execution may be issued at once because the judgment is due.

      Bankruptcy — Exemption—Debtor’s exemption — Execution.
    A judgment creditor of a bankrupt who holds a waiver by him of the benefits of the state exemption laws may have the sheriff levy upon and sell the exempt goods of the bankrupt at any time before his final discharge. The title to the exempt property never passes to the trustee in bankruptcy.
    Where a fi. fa. has issued and exempt property levied upon, but the same cannot be sold because of a restraining order of the bankrupt court, such property after the restraining order has been modified as to it, may be sold on a writ of venditioni exponas issued on the same day that the restraining order was modified. In such a case the lien of the levy during the pendency of the proceedings to appraise and set apart the property to the defendant, and of the restraining order, remains unaffected; and this is so, although there was no stipulation in the order staying the writ that its lien should remain.
    Argued Nov. 21, 1907.
    Appeal, No. 80, Oct. T., 1907, by defendant, from order of C. P. Bradford Co., Feb. T., 1907, No. 82, discharging rule to show cause why execution should not be set aside in case of the First National Bank of Sayre v. F. W. G. Bartlett.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to set aside execution.
    The opinion of the Superior Court states the case.

      Error assigned was order discharging rule to set aside execution.

      L. T. Hoyt, of Hoyt & Schrier, with him H. E..Maynard,, for appellant.

    — We contend that if the fi. fa.' was void and the lien discharged by the adjudication in bankruptcy, then the venditioni exponas issued on March. 12 was also void, and no lien could be acquired by virtue of the venditioni exponas, unsupported by a live fi. fa.: Neil v. Colwell, 66 Pa. 216; McLaughlin v. McLaughlin, 85 Pa. 317; In re Tune, 8 Am. B. R. 285; Clarke v. Larremore, 9 Am. B. R. 476; In re Lesser, 5 Am. B. R. 326; First Nat. Bank v. Staake, 15 Am. B. R. 639
    February 28, 1908.

      J. C. Ingham, with him E. M. Dunham, for appellee.
    — The bankruptcy proceedings did not nullify or destroy the lien of the execution upon the exempt property: Lockwood v. Exchange Bank, 190 U. S. 294 (23 Sup. Ct. Repr. 751); Sharp v. Woolslare, 25 Pa. Superior Ct. 251; Small v. Small, 129 Pa. 366; Brewer v. Blougher, 39 U. S. 178; Lau Ow Bew v. United States, 144 U. S. 47 (12 Sup. Ct. Repr. 517); Toof v. Martin, 80 U. S. 40; In re New England Piano Co., 9 Am. B. R. 767; Com. v. Montrose Boro., 52 Pa. 391; Moyer v. Penna. Slate Co., 71 Pa. 293; Eshleman’s Appeal, 74 Pa. 42; Loveland on Bankruptcy, 543; Lamorelle v. Mass., 30 Pa. Superior Ct. 190; In re Jackson, 8 Am. B. R. 594; McKenney v. Cheney, 118 Ga. 387 (45 S. E. Repr. 433); Bell v. Dawson Grocery Co., 120 Ga. 628 (48 S. E. Repr. 150); Robinson v. Wilson, 15 Kan. 595; Batdorff v. Focht, 44 Pa. 195; Bain v. Lyle, 68 Pa. 60; Slutter v. Kirkendall, 100 Pa. 307; Kightlinger’s Appeal, 101 Pa. 540; Reid v. Lindsey, 104 Pa. 156.
   Opinion by

Morrison, J.,

The plaintiff’s judgment was entered on a note, with warrant of attorney and waiver of exemption, dated August 29, 1906, and read, in part: “On demand, after date, for value received, I promise to pay the First National Bank of Sayre, or bearer, $6,377.24,” etc.

The judgment was confessed and entered on December 13, 1906, and a fi. fa. issued thereon, and a levy made on personal property on the same day. On December 15, 1906, defendant filed a voluntary petition in bankruptcy in the district court of the United States for the middle district of Pennsylvania, and he was duly adjudged a bankrupt thereon. On December 17, a restraining order was issued out of said district court, énjoining the sheriff from proceeding on said fi. fa. Subsequently the property, levied on by the fi. fa., was claimed by the defendant, appraised and set apart to him under our exemption law. On March 12, 1907, an order from the said district court was filed modifying the former restraining order so as to exempt from its operation the property taken by the bankrupt under his exemption. On the same day, a writ of venditioni exponas, with clause of fi. fa., was issued on said judgment, and the same property, levied on the former fi. fa., was duly advertised for sale. No question is raised about the property advertised on the venditioni exponas being the same reserved by the bankrupt as his exemption, and we think it has been well settled that the title to said property remained in the bankrupt and never passed to his trustee in bankruptcy.

The assignment of error is: “The court erred in discharging the rule to show cause why the execution should not be set aside.” The first question argued by appellant’s counsel, is that judgment could not be entered on the note payable on demand, without a precedent demand or request for payment. This question has been so clearly decided by our Supreme Court that we cannot hope to make it plainer. The note' was due on delivery, and no precedent demand was necessary to a right of action or a right to confess and enter judgment thereon by virtue of the warrant therein. It is an unconditional agreement to pay a sum certain on demand; it evidences an existing indebtedness and the entry of judgment was a sufficient demand: Andress’s Appeal, 99 Pa. 421; Swearingen v. Sewickley Dairy Co., 198 Pa. 68; Cook v. Carpenter, 212 Pa. 165; Boustead v. Cuyler, 116 Pa. 551.

Where a contract or instrument provides for payment at a stated time after demand, or upon the future performance of a condition, or the happening of a contingency, the making of a demand is a necessary prerequisite to a right of action: Smith v. Bell, 107 Pa. 352; Eichman v. Hersker, 170 Pa. 402; Taylor’s Administrators v. Witman’s Administrators, 3 Grant, 138. There is no merit in the learned counsel’s first contention.

In our opinion, the second position is equally without merit. In. In re Hill, 2 Am. Bank. Rep. 798, it is said: “Exempt property never becomes assets in the bankrupt court for administration. The title never passes. Only a qualified right of possession is in the trustee. As to property which is exempt, relating back to the adjudication, the title remains in the bankrupt and it is only to be set apart, and otherwise the trustee can exercise no right and owes no duty. It never comes into the court of bankruptcy.” To the same effect is McKenney v. Cheney, 11 Am. Bank. Rep. 54; see also Lockwood v. Exchange Bank, 190 U. S. 294. It has been several times held that a judgment creditor of a bankrupt who holds a waiver by him of the benefits of the state exemption laws, may have the sheriff levy upon and sell the exempt goods of the bankrupt at any time before his final discharge. Not as controlling authorities, but to show the trend of judicial opinion, we cite the following cases: Wagenseller v. Gemberling, 13 Pa. Dist. Reps. 716; Lafferty v. Patton, 14 Pa. Dist. Reps. 255.

In our opinion, the substantial question now under consideration'was decided by this court in Sharp v. Woolslare, 25 Pa. Superior Ct. 251, where we held that: “A federal trustee in bankruptcy is not entitled to the bankrupt’s exemption of $300,' against a creditor who ]jas attached the same by an attachment execution issued and served within four months prior to the bankruptcy, on a judgment waiving exemption.” Unless we recede from the position taken in that case, and attempt to explain and distinguish the authorities therein cited, it rules the present question. We have again reviewed the bankruptcy act of 1898 and the decisions thereon and see no reason for changing our views expressed in the above case. See Adair v. Decker, 34 Pa. Superior Ct. 153.

We do not understand the learned counsel to contend that the appellant’s exempt property might not have been seized and sold on a fi. fa., waiving exemption, issued after it .had been exempted and set apart, and after the grasp of the restraining order of the district court had been released. The contention is that the writ on which the property was advertised was without validity. The levy was made and indorsed on the fi. fa. on December 13,1906, but the sale could not be made on this writ because of the restraining order of the district court. Then after the property so levied had been appraised and set apart to the defendant, the writ of venditioni exponas was issued March 12, 1907, and the exempted property advertised •for sale. If the title to the exempt property never passed to the trustee in bankruptcy, but remained in the appellant, it is difficult to see why it was not subject to the lien and levy of the fi. fa. If this is so, why did not the venditioni exponas, with clause of fi. fa., continue the lien upon the property and authorize its salQ? The lien of the levy during the pendency of the proceedings to appraise and set apart the property to the defendant, and of the restraining order, remained unaffected: Reid v. Lindsey, Sterrit & Co., 104 Pa. 156. This is so, although there was no stipulation in the order staying the ■ writ that its lien should remain: Reid v. Lindsey, Sterrit & Co., 104 Pa. 156.

In In re Jackson, 8 Am. Bank. Rep. 594 (district court for eastern district of Penna.), execution had been issued and levy made March 18, and March 27 a petition in bankruptcy was filed and a restraining order was issued forbidding further proceedings on the execution. McPherson, J., held: “After the property exempted has been separated and delivered, its subsequent fate does not concern us. If some one of the bankrupt’s creditors has already obtained, or should afterwards obtain, a lien upon it, it is not for this court to interfere with his right. ... I think the restraining order should be so modified as to permit the creditor to assert such right as he may have gained by his execution against such property as may be set aside to the bankrupt under his claim for exemption.”

Now, if this ruling is sound, subsection 67/ of the bankruptcy act should be construed to mean that all levies shall be deemed null and void, only, as to the property which passes to the trustee for the benefit of the creditors of the bankrupt, but remain valid for enforcement under the state laws as to the bankrupt’s exempted property. This construction seems to be in accordance with the real meaning of said section. No good reason is apparent for holding the judgment, execution and levy, void as to the bankrupt’s exempted property. It does not seem that the district court has any control over it, except such as may be necessary to aid in having it appraised and set apart under the state laws. After such appraisal and setting apart, it is very clear that the execution issued like the one in the present case, is under the control of the state courts, and we cannot see that it is material whether such execution issued before or after the commencement of the proceedings in bankruptcy. We think it very clear that the language "estate of the bankrupt,” as used in the act of 1898, does not include the exempted property, but only such as passes to the trustee: Loveland on Bankruptcy (2d ed.), 85.

The same author (3d ed.), 543-544, says: "This provision (subsection 67/) does not avoid the levy and liens therein referred to against 'all the world, but only against the trustee in bankruptcy and those claiming under him, so that the property may pass to and be distributed by him among the creditors of the bankrupt.” See also Lamorelle v. Nass, 30 Pa. Superior Ct. 190.

It seems to us that the learned court below did not err in refusing to prevent the sheriff from proceeding with the sale of the appellant’s exempted property, on the venditioni ex-ponas, with clause of fi. fa., in accordance with the law and practice of Pennsylvania, and, therefore, the assignment of error is dismissed and the decree is affirmed.


author: Beaver, J.,

text:
    Ramsay, Appellant, v. Pottstown & Reading Street Railway Company.

      Negligence — Street railways — Passenger—Standing on running board of summer car — Contributory negligence.

    A passenger who rides on the running board of a summer car when there is room for him to stand within the body of the car, is guilty of contributory negligence, and if he is thrown from this position by a lurch' of the car in passihg rapidly around a curve, and killed, no recovery can be had for his death from the railway company.

      February 28, 1908:
    Argued Dec. 4, 1907.
    Appeal, No. 105, Oct. T., 1907, by plaintiffs, from judgment of C. P. Montgomery Co., Dec. T., 1905, No. 80, for defendant non obstante veredicto in case of Joseph H. Ramsey and Dorothy Ramsay, his wife, v. Potts-town & Reading Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Olady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiffs' son. Before Swartz, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiffs for $810. Judgment was subsequently entered for defendant non obstante veredicto.

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

      Henry Freedley, with him J. V. Gotwalts and E. L. Hallman, for appellants.

      Montgomery Evans, with him John M. Dettra, for appellee.
   Opinion by

Beaver, J.,

The jury having rendered a verdict in favor of the plaintiffs, the court below, after thoroughly reviewing the case, upon a motion for judgment non obstante veredicto, entered judgment for the defendant. This is the one alleged error of which the appellant complains.

In their history of the case, the plaintiffs state the facts as follows: “The car was a summer car without interior aisle, the seats crossing the car from side to side. It was midnight, the last trip, the car was late and at the curve where the injury occurred the wire was broken. The seats were filled, some were standing between the seats, the platforms full and eight or nine people standing on the running board on one side, the other side of the car being closed with the bar and the running board empty by reason of the trolley poles on that side. The car was bound for Pottstown, some four miles distant. Ramsay was one of a party of four, two men and two girls, who with others got on at the inn. The girls found place on the rear platform, one standing, one sitting on the floor with her feet on the running board, Ramsay and Cunningham, the' two men, on the running board, Ramsay being at the rear of the car by the platform holding with both hands. As it approached the curve, the speed was very rapid, to get by the break in the wire it was said. When it struqk the curve, it threw the passengers sideways, broke Ramsay’s hold and he fell backward, striking the back of his head and fracturing the skull. He died shortly afterwards without regaining consciousness.”

These facts were not seriously controverted and may be taken as proved, the verdict of the jury having practically established them.

In the appellant’s argument it is said: “The court states the issues as three in number: (1) the speed of the car; (2) the question of vacant seats — these the court concedes were for the jury; (3) was there standing room on the car? It is upon this last issue the court enters its judgment.”

In reference to this, the trial judge,, in his opinion for judgment n. o. v., says: “We think the case is ruled by Woodroffe v. Railway Co., 201 Pa. 521. In that case plaintiff’s husband was riding on an open summer car and occupied the running board. The court said, ‘But there is one fact that appeared from the plaintiff’s witnesses which was conclusive against her right to recover and should have been so declared by the court.’ In support-of this conclusion the following citation is taken from the charge of the court below: ‘I have read the testimony carefully and there is not a single witness for the plaintiff who says there was no standing room in the car. They all, one by one; and one after the other, admitted that there was standing room, that the man need not have stood in a dangerous place and that he could have obtained a place of safety, if he had thought proper. • I have said that every witness for the plaintiff has affirmed that there was standing room.’ In our case the witnesses for the plaintiffs do not all state that there was standing room, but not a single one declares that there was no standing room, and those who were asked the specific question declare that there was standing room. In McDade v. Transit Co., 215 Pa. 105, the doctrine was distinctly announced that there is no distinction between a case where there is seating room and one where there is standing room. In Bumbear v. Traction Co., 198 Pa. 198, a passenger was standing on the side step of an open car. The court in passing upon that case said, ‘The side steps of an open summer car are not intended for the use of passengers, except as a means of ingress and egress. Their use for riding differs in point of danger but slightly from the use of the bumper which is per se negligence and it is so manifestly dangerous as generally to defeat any claim for injuries. A passenger who rides on a side step when it is reasonably practicable for him to go inside the car assumes all the risk of his position, and in all the cases assumes the risk incident to the usual swaying and jolting of the car and from collision with passing vehicles and with obstructions of whatever nature which unexpectedly appear.’

“That it is the duty of a passenger to stand between seats of an open summer ear with a running board is asserted in Rice v. Phila. Rapid Transit Co., 214 Pa. 147. The court said, ‘No satisfactory explanation was given as to why she could not have regained a position upon the body of the car, when she found that it had passed the point where she first expected to alight. She had been standing between the seats and the space - where she was standing was not apparently filled up when she left it;’ in other words, she was bound to take the space between the seats, if it was not occupied by others. When she failed to take the unoccupied space between the seats, she was voluntarily riding on the running board. If it be said that according to McDade v. Transit Co., 215 Pa. 105, it is required that the passenger ‘could conveniently stand inside the car,’ we answer that it was more convenient to step inside and take the vacant space between the seats than it was to walk backward and forward on the running board and crowd around the persons on the running board. All the young man had to do was to take one step into the car; the open space or spaces were right before his eyes as he passed along the running board. We do not think that the word ‘convenient,’ in the connection in which it was used, referred to the comfort of the position as much as it does to the ease or difficulty under which the standing position may be obtained. There was no intent in the use of the word to depart from the test already laid down, to wit: was it ' reasonably practicable ’ to stand inside the car or on the body of the car.”

Since the case was tried, Harding v. Phila. Rapid Transit Co., 217 Pa. 69, has been decided, in which it is said: “Under the circumstances, there was no presumption of negligence on the part of defendant, but even if it had been clearly shown, it would have been altogether immaterial. Plaintiff was riding voluntarily in a place of manifest danger and, in so doing, he assumed all the risks of the situation. It is settled law that it is contributory negligence which will bar recovery to stand on the platform, or the running board of a car, when a place can be reached inside: Thane v. Traction Co., 191 Pa. 249; Bumbear v. Traction Co., 198 Pa. 198; and it is equally clear that one who takes a position of manifest and imminent danger assumes the risk of his position, whether he could have gotten a safer place or not: Bard v. Traction Co., 176 Pa. 97; Malpass v. Pass. R. R. Co., 189 Pa. 599.”

The quotation from the opinion of the trial judge in the court below and this latter quotation clearly state the law of this case. The defendant was in a place of known and manifest danger, the most dangerous point, at the end of the running board of the car. It is very clear from the testimony that the death of the young man, for which the plaintiffs, who are his parents, bring suit, was occasioned by his own contributory negligence. He walked backward and forward upon the running board and preferred to be near his companions rather than take a safer place, if any place upon the running board can be considered safe, or standing room within the car, which, although the car was somewhat crowded, could have been easily found. We cannot see that the lateness of the hour and the fact that the car upon which the young man took passage was the last for the night relieved him in any way from the painful and pitiful consequences of what, under all the cases, was clearly contributory negligence. Whether, therefore, the defendant was or was not negligent is not a question which, need be considered, under the circumstances.

Judgment affirmed.


text:
    Young, Appellant, v. Oviatt.

      Contract — Deed—Base fee — Reversion-^-Personal property — Fixtures— Railroads.

    Where an owner of land conveys to a railroad company a lot “for the purpose of erecting, maintaining and using thereon the necessary buildings ” for a railroad station, and the railroad company builds a station, but subsequently abandons it and sells the building, the reversion of the land to the original owner does not carry with it the building, and the owner cannot maintain a bill in equity to restrain the purchaser of the building from removing it. In such a case if the owner is in any way injured by the removal of the building, he has an adequate remedy at law.
    Argued Oct. 31, 1907.
    Appeal, No. 176, Oct. T., 1907, by plaintiff, from decree of C. P. McKean Co., June T., 1907, No. 3, dismissing bill in equity in case of Ada M. Young, Administrator c. t. a. of the last will and testament of Ann Elida Taylor, deceased.
    Before Rice; P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver. JJ.
    Affirmed..
    Bouton, P. J., filed the following opinion:
    From the pleadings and evidence in this case it appears that Ann Elida Taylor, by deed dated March 20, 1890, conveyed to the Bradford, Bordell and Smethport Railroad Company a lot of land situate in the borough of Smethport, containing 11,300 square feet, “for the purpose of erecting, maintaining and using thereon the necessary buildings and appurtenances suitable for a railroad station, depot, freight office, warehouse, and for all purposes necessary for conducting railroad operations.”
    The habendum clause of said deed is in part as follows:

      “To have and to hold the said premises with all and singular the appurtenances unto the said party of the second part, its successors and assigns, to and for the only proper use and behoof of the said party of the second part, its successors and assigns, so long as the said parties of the second part, its successors and assigns, shall use and occupy the said premises and buildings erected or .to be erected thereon, as a passenger depot and offices, as hereinbefore mentioned, and whenever the said parties of the second part, its successors or assigns, shall fail to use and occupy the said premises as a passenger depot, then the said premises herein conveyed and mentioned or intended to be conveyed, shall revert to and become the property of the said party of the first part, her heirs añd assigns. . . .”
    The grantee, the Bradford, Bordell and Smethport Railroad Company, erected upon said premises a passenger depot and used and occupied it for a number of years as a passenger depot, office and freight house. ■ Some time in April, 1905, the said railroad company ceased to use the building for the purpose of a passenger depot and freight house, boarded up the windows, locked the doors, and the following year sold the building to Frank Oviatt; that under an arrangement between W. I. Oviatt, the defendant, and Frank Oviatt, the purchaser, W. I. Oviatt, acting for Frank Oviatt, attempted to remove the building, whereupon the plaintiff brought her bill alleging that the defendant without any legal right whatever was engaged in tearing up the platform of the said building and was about to remove the same from off the premises. That the building became the property of the estate of the said Ann Elida Taylor by reason of the railroad company’s ceasing to use and occupy the same for the purposes of a railroad passenger depot, by virtue of the.deed made by the said Ann Elida Taylor to the said railroad company. The prayer of the bill is as follows:
    “That the said defendant, his servants, agents, and employees, be enjoined specially until hearing and perpetually thereafter from tear'ng up or removing or in any way interfering with the said building known as the narrow guage depot on' said premises, and for such other and further relief as may seem just and equitable in the premises.”

      On January 5, 1907, preliminary injunction issued, which we are now asked to continue.
    From the plaintiff’s' evidence it appears that the building is worth probably 1100, namely, the value of the timber in it, and perhaps a little more; that it could not be used for anything but a station; that its removal would depreciate the value of the land only to the extent of the value of the building; that the lot would be of the same value with the building removed, less the value of the building.
    When the railroad company erected this building upon this land it became their property, and they having only a conditional estate in the land it cannot be said that there was any intention on their part to make it a part of the realty. Their title to the premises was the same as if they had condemned the land for depot purposes. The building was mere personal property of the railroad company. From the language of the deed it is plain that nothing reverted to the grantor except that which had been conveyed by her, hence her estate acquired no title to the personal property of the railroad company by virtue of the reversionary clause in the deed. Thus it appears that we are asked to restrain the defendant from removing personal propérty, which his principal had bought' and paid for because it happens to stand upon the lands of the plaintiff. With but few exceptions injunction will not issue to restrain one from taking possession of personalty, and in no case where its value can be accurately measured in dollars and cents, and where the only damage occasioned by such removal is .its value. In such cases there can be no irreparable injury, and the plaintiff’s remedy at law is adequate.
    “Injunction is a remedy in equity to restrain or prevent such acts of wrong as would, if done, result in irreparable injury to the property of the complainant. No decree should ever be made to be followed by the writ of injunction unless this element be clearly established: ” Clark’s Appeal, 62 Pa. 447.
    True it is, that injunction is the appropriate remedy where one attempts to take permanent possession of the real property of another, but this is not such a case. In this case we are of opinion that no irreparable injury is threatened, and that the plaintiff’s remedy at law is- adequate. For these reasons the preliminary injunction should be dissolved, and as this is purely an injunction bill we see no reason why it should be retained.
    February 28, 1908:
    And now, to wit: June 3, 1907, the preliminary injunction is dissolved and the bill is dismissed at the costs of the plaintiff.

      Error assigned was decree dismissing the bill.

      T. F. Richmond, with him Sheridan Gorton, for appellant.—
    We do not contend but that the railroad company would have had a perfect right to have removed this building from the land at any time prior to the reversion of the land to the grantor; but we do believe it to be well settled law of Pennsylvania, that upon the expiration of the term, fixtures erected upon the demised premises, become part of the realty and belong to the grantor in the deed: White v. Arndt, 1 Wharton, 91; Davis v. Moss, 38 Pa. 346; Darrah v. Baird, 101 Pa. 265; Lemar v. Miles, 4 Watts, 330; Hill v. Sewald, 53 Pa. 271; Donnelly v. Frick & Lindsay Co., 207 Pa. 597; Hamilton v. Elliott, 5 S. & R. 375.
    If we be right in our contention that this building became the absolute property of the estate of the grantor when the land reverted, then the only question remaining is whether a court of equity has jurisdiction to restrain the defendant from removing this building. The court has such jurisdiction: Bussier v. Weelcey, 4 Pa. Superior Ct. 69; Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235; Jennings Bros. & Co. v. Beale, 158 Pa. 283; Richmond v. Bennett, 205 Pa. 470; Rankin’s App., 1 Mona. 308; Ry. Co. v. Peet, 152 Pa. 488.

      Allan Oviatt, for appellee.
   Opinion by

Beaver, J.,

The opinion of the court below, dissolving the preliminary injunction and dismissing the plaintiff’s bill, clearly states the essential facts of this case. All of the conclusions of law based thereon are, in our opinion, correct. No useful purpose, therefore, can be subserved by a repetition of either. It may not be amiss, however, to state some of the authorities which sustain the' conclusions at which the court arrived.

It may be well to premise that the building, the removal of which is sought to be restrained by the plaintiff, was erected by the railroad company, from which the defendant purchased it, strictly within the limits of, and for the uses and purposes named in, the grant made by the appellant’s testator. The original grant was made “for the purpose of erecting, maintaining and using thereon the necessary buildings and appurtenances suitable for a railroad station, depot, freight office, warehouse and for all purposes necessary for conducting railroad operations.” That the erection made by the railroad company was for the purposes mentioned is practically admitted in the bill, and there is no allegation of any kind that the buildings so erected were for any purpose other than those contemplated in the grant. This being the case, we are not called upon to determine what might be the result if the railroad company, the original grantee, had erected a building or other permanent structure not contemplated by the grant and not necessary for the purposes for which it was made.

As early as Voorhis v. Freeman, 2 W. & S. 116, in an opinion rendered by Mr. Chief Justice Gibson, in which Chaffee v. Stewart, an unreported case, was reversed, it.is observed that this latter case was reversed, because the court “were indisposed to be wise above what is written,” but that an examination of the foundation of the decisions upon which Chaffee v. Stewart was ruled would probably have led to a different conclusion. In this opinion the old English doctrine of physical annexation as the criterion as to whether or not fixtures became a part of the realty was carefully examined and the conclusion there reached was a departure from this doctrine. This has been followed in later cases and, in Justice v. Nesquehoning Valley Railroad Co., 87 Pa. 28, Mr. Chief Justice Agnew reviews the cases and states the principle which, in our judgment, applies to the case in hand. He says: “The common-law rule is undoubted, that a trespasser, who builds on another’s land, dedicates his structures to the owner. The reason is obvious, for like he who sows where he cannot reap, he can obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the samé rule. If he improves under a covenant, the covenant governs his right of removal. So, if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an act of appropriation of the land under a charter. This is clearly pointed out in Heise v. Penna. Railroad Co., 12 P. F. Smith (62 Pa.), 67. The very intent of an appropriation of land is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules), which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times that to apply the rule as to a mere trespasser, whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain' as to attempt to dress a full grown man in the garb of his childhood.”

This was said in reference to a case in which the claim was made that the railroad, having entered upon the land, without pursuing the regular mode provided in such cases, was a mere trespasser and the tracks and other improvements made by it consequently belonged to the owner of the land and were to be accounted for by the railroad to him in subsequent proceedings under the right of eminent domain. The principle, however, that the permanent erection made for a public purpose does not become a part of the realty is fairly laid down in this case, and it seems to us that it governs even more strongly, the improvements being such, and only such, as were contemplated in the grant, in the case under consideration.

Here was a grant for a specific purpose. There is no allegation that the defendant’s vendor, the grantee in the grant, transgressed or violated in any way the terms thereof. The erection made by it was for the very purpose for which the conveyance was made, and under the terms of the grant. When the use and occupation for which it was intended was ended, the reversion was of the estate conveyed and not of the improvements which had been made thereon.

In a case which has been somewhat extensively quoted— Wagner v. The Cleveland & Toledo R. R. Co., 22 Ohio St. 563, 10 Am. Rpts. 770 — it was held that “A railroad company, in the construction of a bridge upon its road, built stone piers and abutments on lands over which it had acquired the right of way. It subsequently abandoned the construction of the railroad at that place. Held, that the piers and abutments did not pass to the landowner. Held, also, that the fact that, upon such abandonment, the owner of the land had been allowed to take possession of that portion embraced in the right of way, and hold it for a period less than was required to extinguish the easement, did not, of itself, imply a relinquishment, by the railroad company, of its right to enter and remove the piers, etc.”

The fact that the estate conveyed by the grantor to the "grantee reverted to the former, upon the abandonment of the railroad, and that the grantor entered upon the possession of the land, did not in our opinion prevent the vendee of the grantee from removing the structure erected by the former, in accordance with the terms of the grant. The erection was entirely consistent with the grant and with the uses and purposes for Which it was made. It did not, therefore, become a part of the realty, but was a part of the estate granted, and, upon the reversion thereof, remained the property of the grantee. The right to sell the same was no greater than the right of removal and, when sold, the vendee had the same right to remove as had his vendor.

The principles which govern in an ordinary case of landlord and tenant, where the term is limited, do not apply here, because in such a case there is no right of entry to remove after the termination of the lease.

The value of the structure having been clearly shown, if there were doubt as to the construction of the grant and the intention of the grantee in the erection of the buildings claimed, there was no difficulty in a recovery in an action at law, and, inasmuch as no irreparable injury would result, as found by the court, it seems also to us that there was a complete remedy at law, and that, therefore, on this ground, even if the more fundamental question was untenable, the bill was also properly dismissed.

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


text:
    Brobst v. Evans, Appellant.

      Trespass — Nuisance—Removal of nuisance — Damages—Evidence.
    In an action of trespass where the plaintiff sought to recover damages for injuries caused by an improper method of removing a cornice which overlapped defendant’s land, and which defendant had a right to remove, plaintiff offered evidence tending to show that the defendant had removed more of the cornice than he had a right to do, and that the defendant in doing the work had injured the plaintiff’s property to the extent of from $350 to $360. The defendant offered evidence that he had not removed more of the cornice than he had a right to, and that the injury to the building had not been caused by the removal of the cornice, but had been a previously existing condition. The jury returned a verdict of $50.00, indicating that they believed the plaintiff’s claim as to the cornice, but not as to the permanent injury. Held, that the verdict and the judgment thereon should be sustained.
    Argued Nov. 15, 1907.
    Appeal, No. 157, Oct. T., 1907, by defendant, from judgment of 0. P. Lancaster Co., JuneT., 1906, No. 6, on verdict for plaintiff in case of J. C. Brobst v. William C. Evans.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Landis, P. J.

      February 28, 1908:
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $50.00. Defendant appealed.

      Errors assigned were (1, 2, 6, 7) various instructions, quoted in the opinion of the Superior Court; (3-5) rulings on evidence, quoting the bill of exceptions.

      B. F. Davis, for appellant,
    cited: Rhea v. Forsyth, 37 Pa. 503; Clarke v. Birmingham & Pittsburg Bridge Co., 41 Pa. 147; Crosland v. Pottsville Boro., 126 Pa. 511; Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Gift v. Reading, 3 Pa. Superior Ct. 359; Pantall v. Coal & Iron Co., 204 Pa. 158.

      W. U. Hensel, with him T. B. Holahan, for appellees,
    cited: Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Eshleman v. Martic Township, 152 Pa. 68; Gift v. Reading, 3 Pa. Superior Ct. 359.
   Opinion by

Beaver, J.,

In an action of ejectment in the court of common pleas of Lancaster county, iii which the appellant here was the plaintiff and the predecessor in title of the appellee was the defendant, a jury found the following verdict: “That they find in favor of the plaintiff, upon condition that the plaintiff release the land by quit-claim deed, upon the payment of $75.00 to plaintiff, and costs of suit, defendant to remove the cornice of his house so far as it laps over property of plaintiff.”

In pursuance of this verdict, the appellant made a quit-claim deed to the appellee, reciting the conveyance of the title of his predecessor to him and the verdict in the action of ejectment, conveying a “ strip of land three (3) inches wide, more or less, and thirty feet in depth of that width, which was in the possession of said W. C. Enck, but which by the verdict of the jury in the case of William C. Evans v. W. C. Enck, in the Court of Common Pleas of Lancaster County of August Term, 1893, No. 32, was to be released by quit-claim deed to said W. C. Enck, conditioned upon the payment of seventy-five dollars and costs of said suit, and the removal of the cornice of said W. C. Enck’s (now belonging to James C. Brobst, M. D., grantee herein) property, so far as it laps over the property of said William C. Evans, grantor herein.”

This conveyance was coupled with the condition: “It is hereby agreed that the grantee shall remove the cornice so far as it laps over the property of grantors.”

After repeated notices, according to the testimony, by the appellant to the appellee, the latter failed to remove the cornice. The former undertook to do so, as it is practically admitted he had the right to do. In doing this, however, the plaintiff claims that he removed the overlapping cornice which was on the front or south side and on the rear or north side of the building, beyond the line dividing the two properties, and what is called a “patch-board” on the east side of the building, which was within the line on the plaintiff’s side.

There were two principal questions of fact involved. The one was that the appellant had removed more of the cornice than overlapped upon his premises and also the patch-board which was entirely upon the premises of the appellee, and, secondly, that, by doing so, the building, which had been protected by the patch-board, was permanently injured, and that, in order to make it good or restore it to its former condition, the cost would amount to $350 or $360. The appellant, on the other hand, claimed that he had removed no more than he had a right to remove and that the injury to the building was not occasioned by the removal of the patch-board, but that the roof and the eastern wall had leaked previously, so that the injury was not occasioned by the removal of the patch-board but by a long-continued deterioration occasioned by leakage which the appellee had vainly endeavored to stop. As to both of these questions there was contradictory testimony.

It is not often that the mental processes of a jury can be clearly seen in a verdict. Here, however, they are quite plainly apparent. Instead of $350 or $360, which was the practically uncontradicted testimony of the plaintiff’s witnesses that it would cost to restore the building to a safe and habitable condition, the jury found for the plaintiff, the appellee here, in the sum of $50.00. It is manifest, therefore, that as to the first fact they found in favor of the plaintiff, namely, that the patch-board, which was from an inch and a half to an inch and three-quarters thick, did not overlap upon the premises of the defendant; but as to the second fact they evidently found in favor of the defendant, namely, that the deterioration in the building was not occasioned by the removal of the patch-board but by previous and long-continued leakage. In addition to the removal of the patch-board, the defendant, the appellant here, had removed the cornice close to the eastern wall of the appellee’s building and, therefore, if the finding of the jury is correct, as we are bound to assume, removed more of the cornice than he was entitled to remove. Although there was no direct evidence as to the amount which it would require to restore that cornice, front and rear, which was shown to have been splintered and somewhat defaced even beyond the eastern fine of the building, and replace the patch-board which had been removed, the jury evidently exercised their common sense as to what would be required to put this cornice and patch-board in good condition, so as to put the building in as good condition up to the line between the properties of the appellant and the appellee as it had been before the removal of the cornice and patch-board made by the plaintiff.

The appellant, in the sixth and seventh assignments, alleges error in the court’s charge, but, inasmuch as the parts of the charge assigned for error are practically in accord with the contention of the appellant here, we cannot see wherein he can consistently charge the court with doing him hurt in any way. In the sixth assignment, he bases his allegation of error upon the following part of the charge: "It is said, because of the taking off of the cornice and the patch-board, the rain penetrated into the building and that the wall was damaged. If that is so, and you find that Evans did what he had no right to do, then you must compensate Brobst in the amount of damages which you will ascertain will restore his property to the condition it was in before Evans did this act. But, if the damages for which he claims cannot be attributed to this cause, but to the defects of the building itself, before anything was done by Evans, that is, if the building leaked and the rains penetrated through the nine-inch wall before, and no more damage was sustained after than before, that is, if the cause was not the taking off of the patch-board and the cutting off of the cornice, but was on account of the inherent defects in the building prior to that time, then, of course, Evans ought not to be called upon to pay damages for what resulted from some other cause than that which is claimed here in this case.” This is precisely what is claimed by the appellant here, and is in every respect in accordance with well-settled principles.

So, in the seventh assignment, it is charged that the court erred in saying: “The plaintiff has said, by some witnesses, that his damages were from $350 to $360. You will take all the evidence into account on this question of damages, and, as I have said before, if what damages there were to the building were not caused by Evans, of course you will not allow Brobst anything on that account.” The verdict of the jury clearly shows that they were of opinion that the damages which would have required $350 to repair were not caused by the removal of the cornice and patch-board and, in that respect, it was entirely in accord with the charge of the court and the contention of the appellant.

As to the admission of the testimony of the several witnesses who testified in regard to the damages, they were subject to cross-examination and their testimony was contradicted by that of the appellant, in which it was attempted to be shown that the damages complained of were not occasioned by the removal of the patch-board but by the inherent defects in the roof and wall of the appellee’s building before the patch-board was removed. We are of opinion that there was no error in the admission of the testimony, and, inasmuch as the appellant’s testimony upon this part of the case was evidently believed by the jury and the verdict was in accordance with that view of the case, there does not seem to be anything of merit in the several assignments of error relating to this subject.

The first assignment alleges error in this portion of the charge of the court: “In case, however, you find that Evans took away a portion of the cornice which was upon the Brobst land and the patch-board upon the Brobst land, then your verdict will be in favor of the plaintiff, and in that event you will ascertain what damages, if any, Brobst has sustained by reason of the act of Evans in this regard.” This was as clear and comprehensive a statement of the whole case as it was possible to make, and was an exact definition of the real issue involved. There was no error whatever, nor an approach to error, in it.

The second relates to the point presented by the defendant' that “ Under the evidence the verdict should be in favor of the defendant.” The case was clearly one for a jury and we can see no error in the admission of testimony or in any portion of the charge of the court, alleged for error, of which the appellant can consistently or rightfully complain.

Judgment affirmed.


author: Orlady, J.,

text:
    Thatcher, Appellant, v. West Chester Street Railway Company.

      Contract — Ambiguous contract — Interpretation—Surrounding circumstances — Acfs of the parties.

    In construing the meaning of an ambiguous contract the court will consider the surrounding circumstances at the time the contract was made, and also the interpretation put upon it by the parties themselves as evidence by their course of dealing under it.
    In an action against a street railway company it appeared that the plaintiff had granted to the defendant, an electric railway company, the right to lay its tracks across his farm for a distance of about one mile as a part of the extension of its original railway. The consideration for the grant was a promise to the plaintiff to furnish him four annual tickets which should enable him and parties whom he designated “to ride in the cars operated over the proposed electric railway owned and operated, or may be owned and operated ” by the company. The plaintiff received four tickets for the first year which entitled him to ride over the whole of defendant’s system as it was then in operation. At the end of the year he was tendered tickets limited to the extension which ran through his farm. It appeared that this extension did not carry him to the large town to which the plaintiff and his family were accustomed to travel for business and social reasons. Under the limited tickets plaintiff was obliged to pay fare from the end of the extension to' the town. He brought suit for the aggregate of fares which he had been compelled to pay after the limited tickets had been issued to him. Held, that the plaintiff was entitled to recover the amount of his claim.
    Argued Nov. 21, 1907.
    Appeal, No. 152, Oct. T., 1907, by plaintiff, from order of C. P. Chester Co., Oct. T., 1906, No. 10, entering judgment for defendant non obstante veredicto in case of William P. Thatcher v. West Chester Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for breach of a contract. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $81.94. Plaintiff appealed.

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

      George B. Johnson, for appellant.
    — A well-settled principle of construction is that where the language of the promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee: Mo watt v. Londesborough, 3 El. & Bl. 3Ó7; Wells v. Carpenter, 65 111. 447; Street v. Chicago Wharfing, etc., Co., 157 111. 605 (41 N. E. Repr. 1108); Thoubboron v. Lewis, 43 Mich. 635 (5 N. W. Repr. 1082); Farley v. Pettes, 5 Mo. App. 262; Potter v. Ontario, etc., Mut. Ins. Co., 5 Hill, 147; White v. Hoyt, 73 N. Y. 505; Barlow v. Scott, 24 N. Y. 40; Hoffman v. HCtna Fire Ins. Co., 32 N. Y. 405; Chamberlain v. Painesville, etc., Ry. Co., 15 Ohio St. 225; Williamson v. McClure, 37 Pa. 402; Gunnison v. Bancroft, 11 Vt. 490; Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87; Bickford v. Cooper & Co., 41 Pa. 142; Coleman v. Grubb, 23 Pa. 393; Ringrose v. Ringrose, 170 Pa. 593; People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22; Matchette v. Colburn, 166 Pa. 265.

      February 28, 1908:

      B. T. Cornwell, with him J. Frank F. Hause, for appellee.
   Opinion by

Orlady, J.,

The plaintiff is the owner of a farm in Chester county on which he has lived for over forty years, and through which the defendant railway company built an extension of its original railway so as to traverse his farm for a distance of about one mile, the grant being to the defendant, and “its successors and assigns the right, liberty and privilege of constructing, operating and maintaining a railway through and over said tract of land” upon a location designated in the agreement; which privilege was granted solely upon the conditions specified in a writing signed by the plaintiff, which contained a number of stipulations in regard to the construction and operation of the road, but the one involved in this controversy relates exclusively to the consideration for the contract, as follows: “That the said William P. Thatcher shall be furnished with four annual tickets, upon the payment by him of one cent yearly; which tickets shall entitle them to ride in the cars operated over the proposed electric railway owned and operated, or may be owned and operated by the party of the second part so long as the title to the property shall remain in the party of the first part, the said William P. Thatcher to designate on or before the first of each year to whom the remaining three annual tickets shall be issued for that year.” The plaintiff contends that the contract means that he should have four annual tickets, issued to parties designated by him, over the whole of the defendant’s system of electric railway as it was in operation and contemplation at the date of the contract signed by him. The defendant claims that these four tickets should be limited to the branch or extension of the railway between Lenape and Kennett Square, as this was the “proposed electric railway” which passed through the plaintiff’s premises. The latter view was taken by the court, and the verdict, which had been rendered in the plaintiff’s favor, was set aside and judgment entered in favor of the defendant.

As an aid to the construction of the contract, we must consider the situation of the contracting parties. The West Chester Street Railway Company was chartered in 1890, and in 1893 had completed its street railway in the borough of West Chester, and also an extension about four miles in length from West Chester to Lenape. Ten years after the completion of this branch, the company proceeded to secure rights of way for the construction of an extension of its railway from Lenape to Kennett Square, and other extensions to Coatesville, Downingtown; etc. The plaintiff’s land being in its line of survey, necessitated a contract with him for a right to pass over his land and occupy it. The distance from Kennett Square to Lenape was about six miles, from Lenape to West Chester three and one-half miles, and from West Chester to Downing-town about nine miles. The plaintiff and his family had frequent occasion to travel to and from West Chester, where some members of the family attended school, and where their general family business was transacted. Representatives of the company had a number of interviews on the premises with the plaintiff at which time, as shown by the testimony, the location of the road was determined, the system of the railroads then constructed, and to be, constructed was explained to the .plaintiff by the description given in the mortgage on record on the defendant’s property, which was admitted in evidence, in connection with the plaintiff’s testimony, in order to shed light on whatever information he had as to the roads the company contemplated building, which mortgage recited by special description, the railways in the borough of West Chester; the extension to Lenape; the extension from Lenape, to Kennett Square and Unionville; the extension to Downingtown, and also to Coatesville and Parksburg. It is conceded that the free transportation for four members of his family over the defendant railway was the sole inducement for his signing the contract; however, the contract must speak for itself, the interpretation being purely a matter of law. It does not contain any ambiguous words, the only difficulty in the case being the application of the description mentioned in the contract to the subject-matter, namely, the property of the defendant. If, as contended for by the defendant, the transportation were to be limited to the Kennett Square and Lenape branch, the plaintiff paying fares to the town of West Chester, it would seem to be out of all proportion to the consideration passing to the railroad company, viz.: the right to construct and forever maintain its railway for one mile through the plaintiff’s farm. When the road was completed through the plaintiff’s premises in July, 1904, the president of the defendant company issued orders or passes for transportation, over the West Chester Railway Company to four designated members of the plaintiff’s family, which entitled the holders to passage over the whole system then in operation (as described in the general corporation mortgage) until December 31, 1904. With the beginning of 1905, annual transportation was tendered by the defendant to the plaintiff and four members of his family, but limited by the words, “on account contract between Lenape and Kennett Square until December 31, 1905,” a similar issue being tendered for 1906. These passes were used as far as they were accepted by the company, and regular fare being paid for the remaining distance to West Chester, which fares aggregated the amount of the verdict returned by the jury. It has been frequently held that the surrounding circumstances at the time the contract was made may be considered to arrive at what the parties meant: Frazier v. Monroe, 72 Pa. 166. And in giving an interpretation to a contract, when it is capable of two interpretations, that which the parties themselves put upon it will be followed' as being the true intent and meaning of the parties by their own construction of its terms: Gass's Appeal, 73 Pa. 39. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the party in regard to which they have negotiated are all elements in the interpretation of an ambiguous contract: Lacy v. Green, 84 Pa. 514. Where the terms of the promise admit of more senses than one, the promises are to be performed in that sense in which the promisor apprehended at the time the promisee received it. That this is as good in law as in ethics may be shown by the application which was made of it in Potter v. Insurance Co., 5 Hill, 147; Williamson v. McClure, 37 Pa. 402. The circumstances surrounding the parties when the contract was made, and affecting the subject to which it relates form a sort of cqntext that may be resorted to in doubtful cases to aid in arriving at the meaning of the contract: Bole v. Insurance Company, 159 Pa. 53; McKeesport Machine Co. v. Insurance Co., 173 Pa. 53; Moore v. Insurance Co., 199 Pa. 49. When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it as evidenced by their course of dealing under it: People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22; St. Clair School District v. Water Co., 166 Pa. 81. While the matter was yet fresh in the minds of the parties who made the contract, the president and other officials, being on the ground and knowing all the facts, issued the cards for transportation “in the cars operated over the proposed electric railway, owned and operated or may be owned and operated ” by the defendant, which was in strict accord with the common sense and natural interpretation of the words of the contract, and which was then well known to be the sole, and a reasonable inducement of the plaintiff in surrendering to the company the right of way over his land. About the expiration of this first year, a change in the management of the company occurred, and new minds were applied to the interpretation of the plain letter of the contract, without the knowledge or in defiance of the circumstances attending its execution, which resulted in a restricted interpretation. To accept the view urged by the zealous counsel of the defendant would imply either that the plaintiff had been unduly credulous, or that he had been imposed upon by the officers of the company, which, in the light of the evidence, would be unfair to both parties to the contract.

The judgment is reversed, and judgment is now entered on the verdict in favor of the plaintiff for the amount of $81.94 and costs.


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    Columbia Baking & Manufacturing Company v. Schissler, Appellant.

      Guaranty — Suretyship—Acceptance of guaranty — Notice of acceptance.

    Except in cases of absolute guaranty, accepted when given, notice of acceptance is necessary to fix the liability of the guarantor. Such notice is necessary, even if the guaranty is made at the request of the guarantee.
    In an action of assumpsit it appeared that plaintiff relied on a writing signed by the defendant as follows: “To whom it may concern, this is to certify that the undersigned faithfully agrees to act as security in behalf of A, who acts as agent for the sale of product as manufactured ” by plaintiff “for the amount of one hundred dollars.” At the date of the instrument, A owed nothing to the plaintiff. There was no evidence of acceptance of the paper by the plaintiff. Held, (1) that the paper in question was a guaranty of a future liability to be incurred by A, and (2) that as defendant received no notice of the acceptance of the guaranty by the plaintiff, the defendant was not liable thereon.
    Submitted Dec. 4, 1907.
    Appeal, No. 142, Oct. T., 1907, by-defendant, from judgment of 0. P. Schuylkill Co., March T., 1906, No. 16, on verdict for plaintiff in case of Columbia Baking & Manufacturing Company v. J. H. Schissler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a contract of guaranty. Before Shay, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment on the verdict for plaintiff for $100.

      J. O. Ulrich, for appellant.
    — The defendant “agrees to act as security in behalf of John Guensch” which is only an offer to become responsible for a credit which may or may not be given Guensch and the defendant should have been notified by the plaintiff within a reasonable time that his offer had been accepted and that Guensch would be given credit upon such guaranty: Lee v. Dick, 35 U. S. 482; Reading R. R. Co. v. Johnson, 7 W. & S. 317; Railroad Co. v. Allegheny County, 63 Pa. 126; Kellogg v. Stockton & Fuller, 29 Pa. 460; Zahm v. Bank, 103 Pa. 576; Reigart v. White, 52 Pa. 438.
    February 28, 1908:
    The plaintiff is bound to use due diligence to obtain payment from Guensch before it can maintain suit against the defendant, and a mere demand on Guensch is not such due diligence: Johnston v. Chapman, 3 P. & W. 18; Isett v. Hoge, 2 Watts, 128; Hoffman v. Bechtel, 52 Pa. 190; Woods v. Sherman, 71 Pa. 100; Kramph’s Executrix v. Hatz’s Executors, 52 Pa. 525; Rudy v. Wolf, 16 S. & R. 79; Mizner v. Spier, 96 Pa. 533.

      Chas. E. Breckons, for appellee.
    — The contract was one of suretyship: Reigart v. White, 52 Pa. 438; Marberger v. Pott, 16 Pa. 9; Riddle v. Thompson, 104 Pa. 330; Watson v. Porzel, 158 Pa. 513; Bartholomay Brewery Co. v. Thomeier, 2 Pa. Superior Ct. 345; Owen v. Jeter, 5 Del. County Rep. 392; Osborne & Co. v. Campbell, 5 Kulp, 248.
   Opinion by

Morrison, J.,

In this action of assumpsit the single question, as stated by the learned court below, and counsel for appellant and for appellee, is whether the appellant became surety or guarantor for one John Guensch, by the following written instrument: “To whom it may concern, this is to certify that the undersigned faithfully agrees to act as security in behalf of John Guensch, of Tamaqua, Penna., who acts as agent for sale of product as manufactured by the Columbia Baiting and Manufacturing Company for the amount of one hundred dollars ($100.) said Mr. John Guensch to have exclusive right to territory known as Tamaqua and vicinity. Signed this 11th day of November, in the year of our Lord, nineteen hundred and three. J. S. Schissler (Seal). Warren F. Emerick, Witness.” It appears that the appellee constituted and appointed John Guensch its agent in Tamaqua on November 10, 1903, and the above-quoted paper was executed by the appellant on the next day.

The writing in question is not an undertaking to become surety for the payment of any stated or special liability of Guensch then existing, but a guaranty or offer to become liable “to whom it may concern,” for the sum of $100, clearly a liability to accrue in the future. The learned court below reserved the question “whether there is any evidence which entitles the plaintiff to recover,” and subsequently granted judgment in favor of the plaintiff on the verdict, which the court had directed, and overruled the motion for judgment in favor of the defendant non obstante veredicto. The single error assigned is this action of the court.

We have examined with considerable care the cases cited by the learned court, in the opinion filed, and we do not think they sustain his conclusion that the paper constituted a surety-ship. His first case is Riddle v. Thompson, 104 Pa. 330, but that case is not in point. In it the assignors of a judgment in the very paper assigning it, said: “For value received we assign this judgment to Samuel L. Riddle, Sr., and guaranty payment thereof in one year from this date, January 8, 1878.” Held, that the assignors were not guarantors, but sureties, and that a valid extension of time without their consent discharged them from liability. It seems very plain, to us, that the present case is widely different from that one.

The next case is Ashton v. Bayard, 71 Pa. 139. That was a duebill, “Due on demand, after sixty days, to C. P. Bayard or order, one hundred shares of Schuylkill Navigation Preferred stock. Stephen Coulter, Philadelphia, October 25, 1864.” “I hereby become the security of S. Coulter, for the fulfilment of the within obligation. S. K. Ashton, October 25, 1864.” Held, to be an original undertaking by Ashton, and Bayard might recover without proving diligence to pursue Coulter. The next is Brewery Co. v. Thomeier et al., 2 Pa. Superior Ct. 345, but that was a distinct written guaranty, given to the plaintiff, by the defendant, to the amount of $500, and it contained the following: “This is intended as a continuing security, and is to bind us to an indebtedness or liability accruing from time to time until we give, or either of us gives, written notice that it shall not be binding for further indebtedness or liability.” This was held to be an undertaking of suretyship, and the reason for this is very apparent. It was a sealed instrument, delivered to a special party and for a specified purpose and amount.

The next is Watson et al. v. Porzel et ah, Executors, 158 Pa. 513, but that was founded on a letter, written by the defendant’s testator to the plaintiffs, and it was held to be evidence of an original undertaking by defendant’s testator to pay for the goods therein specified upon their delivery to J. A. Miller.

The next case is Allen v. Hubert, 49 Pa. 259. That was a lease dated November 5, 1861. The question was the liability of the defendant, either as guarantor or as surety. The language was: “For consideration received, I hereby agree to become security for the faithful performance of the above agreement. Witness my hand and seal, the day and year last above ’written. L. Hubert (Seal).” The defendant’s liability was held that of suretyship. In the opinion, Strong, J., said: “The case is not to be distinguished from Marberger v. Pott, 16 Pa. 9. In both cases, the form of the contract was that of an original and absolute liability.” This seems to be the criterion. Where the undertaking is original and absolute it cannot be less than suretyship.

The next is Speers v. Knarr, 4 Pa. Superior Ct. 80, but that is where a vendor delivered lumber to another at the special request of the defendant and on his promise, as found by the jury, to pay for it. Held, not to be a guaranty and not within the statute of frauds. The next is Marberger et al. v. Pott, 16 Pa. 9. That was an engagement indorsed on a promissory note, under seal, for $500, of the same date with the note as follows: “I hereby acknowledge to be security for the within amount of $500, until satisfactorily paid by Wm. Audenried.” Held, to import the liability of a surety, and not that of a guaranty.

The court also cites Reigart v. White, 52 Pa. 438. In that case Emory having contracted for goods, to be paid for in nails, Reigart wrote to the seller, “If you have not shipped the goods, ship immediately and I will be responsible for the delivery of the nails by Emory.” Held, to be an agreement to be responsible for the delivery of the nails, not for Emory’s ability to deliver. “Guaranty is an engagement to pay on a debtor’s insolvency, if due diligence be used to obtain payment. In suretyship, the surety assumes to perform the contract of the principal if he should not; in guaranty the guarantor undertakes that the principal is able to perform it.”

We do not understand the above cases and others in the-same line, cited by counsel for appellee, to control the undertaking in the case at bar. They are all plain cases of surety-ship, or original undertakings. An examination of each one of them shows that it was an undertaldng to pay a definite sum to a definite person and in most of them the sum was actually fixed at the time the obligation of surety was assumed.

We hold the paper in question to be a' guaranty of a future liability to be incurred by John Guenseh. In other words, it was an offer to guarantee him to the amount of $100, and the appellant was not liable thereon, until after notice from the appellee. It does not appear in the present case that Guenseh owed the appellee a cent when the appellant executed and delivered the paper in question.- Therefore, if appellee extended credit to Guenseh thereafter and intended to look to appellant on his guaranty, he was entitled to notice: Coe & Richmond v. Buehler, 110 Pa. 366; Gardner to use v. Lloyd, 110 Pa. 278. “Except in cases of absolute guaranty, accepted when given, notice of acceptance is necessary to fix the liability of the guarantor. Such notice is necessary, even if the guaranty is made at the request of the guarantee:” Evans & Co. v. McCormick, 167 Pa. 247. In that case plaintiff telegraphed the defendant: “Bierly’s purchases amount to about $700. Will you guarantee payment?” Three days later defendant telegraphed plaintiff: “I will guarantee payment of Bierly bill.” Plaintiff sold and delivered goods to Bierly without notifying defendant of the acceptance of the guaranty. Held, that defendant was not liable on the guaranty.

If we are correct in our conclusion that- the appellant’s undertaldng was that of guaranty, then the case of Acme Mfg. Co. v. Reed, 197 Pa. 359, is conclusive that the court erred in entering judgment against the appellant. In American Radiator Company v. Hoffman, 26 Pa. Superior Ct. 177, we held that although the contract used the word guaranty, it amounted in law to a contract of suretyship. But an examination of the writing in that case shows a marked difference between it and the undertaking of the appellant in the present case. In the former, the so-called guarantor specifically agreed to pay a fixed sum at a fixed date as though he were primarily liable, and he waived all right to notice of any kind on account of default in payment by the principal debtor.

In the present case, John Guensch owed the appellee nothing when the appellant signed the guaranty of November 11, 1903.

It was no more than an offer to guaranty someone, perhaps the plaintiff, to the amount of $100, and the appellant did not become legally liable thereon without notice that the appellee had accepted him as guarantor, and had or would extend credit to Guensch on account thereof. There is not a particle of evidence in the case of any such notice. We therefore conclude that the appellee failed to make a case and the learned - court erred in not entering judgment on the reserved question in favor of the defendant: Murphey v. Phila. Transit Co., 30 Pa. Superior Ct. 87.

The assignment of error is sustained, judgment reversed, and judgment is here directed to be entered in favor of the appellant non obstante veredicto.


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    Lemm, Appellant, v. Potamkin.

      Affidavit of defense — Practice, C. P. — Contract—Perishable goods.

    In an action of assumpsit to recover the price of fish alleged to have been sold free on board cars at a station in Illinois, an affidavit of defense is sufficient which denies that the fish was sold free on board in Illinois, and avers that they were sold for delivery in Philadelphia on a day stated, and for a particular market day; that they arrived three days late, that they were spoiled and in an unmarketable condition, and could not be carried over until the next week’s market.
    Argued Dec. 10, 1907.
    Appeal, No. 200, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1907, No. 3,454, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry Lemm, trading as Henry Lemm’s Fishery, v. Harry Potamkin and Max Potamkin, trading as H. Potamkin & Co.
    February 28, 1908:
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for price of fish alleged to have been sold and delivered.
    The material averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      J. C. Levi, of Bamberger, Levi & Mandel, for appellant.—
    The affidavit of defense was insufficient: Goshen v. Laufer, 1 North. 19; Smith & Co. v. Thorne & Co., 9 Kulp, 195; Schlitz Brewing Co. v. Rosenbluth, 33 Pa. Superior Ct. 303; Andrews v. Packing Co., 206 Pa. 370.

      Joseph S. Goodbread, for appellees.
   Opinion by

Morrison, J.,

This is an appeal by plaintiff from the order of the court below refusing judgment for want of a sufficient affidavit of defense. The plaintiff declared, on book account, for $811.40, with interest thereon from December 9,1906, being the amount due plaintiff for merchandise sold and delivered to the defendants, at their request, on November 18, 1906; said merchandise consisting of a car of assorted fish, ordered by the defendants from the plaintiff and which was duly delivered by the plaintiff to the said defendants, free on board of cars of a railroad company or common carrier at Pekin, state of Illinois. Plaintiff further avers that at the time of the delivery of the said fish to the said defendants, all of the fish were of the land ordered and merchantable in quality and that the prices charged were just and reasonable and worth the amount therein claimed. Then follows a copy of the book account, dated November 28, 1906, for 103 barrels, amounting to $811.40; then follows an averment that the whole amount, with interest thereon, is justly due and owing to the plaintiff from the defendants.

The defendants promptly filed an affidavit of defense in which they denied that the plaintiff, on November 18, 1906, sold and delivered to defendants one car load of fish, to be delivered on board of cars of a railroad or common carrier at Pekin, Illinois. That plaintiff did not deliver to the defendants a car load of assorted fish, free on board of cars at Pekin, in the state of Illinois, as set forth in the statement of plaintiff’s claim; nor is it true that defendants ordered one car load of fish, as set forth in statement of plaintiff’s claim. That defendants ordered eighty-eight barrels at the price of $706.40, to be delivered to them on the cars at Philadelphia. The other fifteen barrels were sold by plaintiff to one Joseph Bikoff, a fish dealer in Philadelphia, for the price of $105, and said fish were to be delivered to the said Bikoff on the cars at Philadelphia, and, for the convenience of the plaintiff, were shipped in the same car in which the fish ordered by defendants were shipped. Defendants further aver that the fish did not reach Philadelphia until December 7, 1906, although, under the agreement between the plaintiff and defendants, the fish ordered by the latter were to be delivered in Philadelphia on Tuesday, December 4, 1906, in order to be on hand for the Wednesday and Thursday market, which days are the regular market fish days for the dealers in Philadelphia, and in the event of fish not reaching the Philadelphia market by Tuesdays, dealers would be compelled to hold them until Wednesday or Thursday of the week following, and that none of the fish mentioned in the statement of plaintiff’s claim, when they reached Philadelphia, were in a condition to be preserved for the market next following their receipt. The affidavit further avers that if the fish had been shipped at the proper time and in the proper manner they should have reached Philadelphia on December 4; and defendants and the said Joseph Bikoff refused to receive the said fish, for the reason they were decayed and unmarketable and unfit for food or use, and were entirely without ice. The affidavit also avers that the above stated facts constitute a just and true defense to the whole of the plaintiff’s claim.

Assuming the facts stated in the affidavit to be true, as we must for present purposes, we think it sets up a complete defense to the plaintiff’s claim and therefore the learned court committed no error in discharging the rule for judgment.

The appeal is dismissed, at the plaintiff’s costs, and the order is affirmed without prejudice to the right of the plaintiff to have his case tried, etc.