text:
    Hoover, Appellant, v. Strohm.

      Trusts and trustee — Vendor and vendee — Evidence—Parol evidence— ■ Fraud.

    Where a vendee of land under articles of agreement procures another person to advance the purchase money and as security for the advances to take the title in his own name under a verbal promise to convey the land to the vendee upon the repayment of the advances, a violation of such promise converts the lender into a trustee ex maleficio; and in an ejectment to enforce such a trust the vendee is entitled to a judgment in his favor, but conditioned upon his payment to the lender of the debt,, and interest, and taxes paid by the lender.
    Argued March 16, 1910.
    Appeal, No. 2, March T., 1910, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1905, No. 467, for defendant, on case tried by the court without a jury in suit of Verdilla Hoover v. Henry L. Strohm.
    Before Rice, P. J., Henderson, Or-lady, Head, Beaver and Porter, JJ.
    Reversed.
    Ejectment for land in the village of Rockville in Susquehanna township. Before Shull, P. J., specially presiding.
    The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant on the case stated.

      Paul A. Kunkel, with him Frederick M. Ott, for appellant.
    No trust was created by the transaction between the parties: Martin v. Baird, 175 Pa. 540; Sterck v. Germantown Homestead Co., 27 Pa. Superior Ct. 336; Safe Deposit, etc., Co. v. Linton, 213 Pa. 105; Grove v. Kase, 195 Pa. 325; Kisler v. Kisler, 2 Watts, 323; Williard v. Williard, 56 Pa. 119.

      E. E. Beidleman, for appellee.
    This testimony, together ' with the receipts, clearly shows that the learned court below was right in concluding that the appellant took this title for the appellee, and that the appellant having refused to convey the title now holds the same as trustee ex maleficio for the appellee: Beegle v. Wentz, 55 Pa. 369; Boynton v. Housler, 73 Pa. 453; Morey v. Herrick, 18 Pa. 123; Wolford v. Herrington, 86 Pa. 39; McCloskey v. McCloskey, 205 Pa. 491; Lancaster Trust Co. v. Long, 220 Pa. 499.
    October 10, 1910:
   Opinion by

Head, J.,

The action was ejectment and the cause was tried before a court without a jury. From the abstracts of title filed and the evidence generally, in this respect not disputed, it appears that one Mary S. Turns was formerly the owner of the land in dispute and that both plaintiff and defendant claim under her. It further appears that perhaps as early as December, 1903, Strohm, the defendant, entered into an agreement with her for the purchase of the property for the sum of $875, making a small payment on account for which the vendor gave him an acknowledgment in writing. That he thus acquired some interest in the property we do not understand to be denied. If at this time the plaintiff had any knowledge of the transaction, her only part in it was that of a prospective money lender, it appearing that she was willing to advance to Strohm the money necessary to pay for the property and permit him to repay it in small installments with interest. We do not. think we need stop to inquire whether the receipt given by the vendor to Strohm was of such character that he could have enforced specific performance of the contract of sale, had the vendor undertaken to repudiate the contract. She having been at all times ready and willing to complete the sale, we do not think the present plaintiff had any standing to raise that question.

The deed from Miss Turns, although executed in January, 1904, was not delivered until May of the same year. This delay arose from the fact that upon an examination of the title some doubt existed as to whether she could convey a good title in fee simple, or whether it would be necessary to have certain other parties join therein. A case stated was prepared and submitted to the court, resulting in a judgment which was entered about the end of April. Meantime Strohm had taken possession of the property which he has since retained and he paid the costs and expenses incurred in the examination of the title and the legal proceedings already mentioned.

In the deed, as executed and delivered, Verdilla Hoover, the plaintiff, was named as the grantee, and herein is found the root of the controversy between the parties. She does not deny that her relation towards the defendant in the first instance was that of a prospective money lender. She does not deny that he had negotiated with the former owner for the purchase of this property, agreed on the price to be paid, and had actually paid a portion of the purchase money. She does not deny that with matters in this shape the defendant “applied to the said Verdilla Hoover, the plaintiff, for financial assistance to complete the purchase.” She does allege, however, in her abstract or statement of claim, that later on it was verbally agreed between the parties that she should pay the balance of the purchase money and take the title in her name, at the same time executing and delivering to the defendant a written agreement providing for a conveyance to him, upon repayment of the purchase money with interest, in the manner and at the times to be provided for in the agreement. She declares in her testimony that the defendant verbally assigned the sale to her, or, to use her own language, “Mr. Strohm turned that sale over to me.” In speaking of this arrangement, the attorney, who at the time represented all of the parties and was called as a witness, delivered the following testimony, inter alia: “Q. The deed was to be made to Miss Hoover? A. Yes, sir. Q. With the understanding that Miss Hoover was to turn that title over to Mr. Strohm when, under the agreement with her, he paid her certain money? A. That is correct. Q. And she got the title under that agreement and understanding? A. She got the title because of that, because she couldn’t have gone and bought it if he hadn’t asked her. Q. From whom? A. From Mary Turns. Miss Hoover couldn’t have got it except by this arrangement with Mr. Strohm.”

The parties later on disagreed as to the amount of hand money which was to be paid. There does not seem to have been any dispute that the remainder of it, after the down payment, was to be paid in monthly payments of not less than $10.00. As to the cause of this disagreement the testimony of the parties is hopelessly conflicting. An agreement in form was actually drawn up by counsel and given to the plaintiff. In it the amount of the hand money was left blank.. She never filled in any amount and never executed the agreement herself, and of course the defendant never did.

The defendant testified to repeated tenders made by him, or his wife for him, of various sums of money on account of the monthly installments. All of these were flatly denied by the plaintiff. She in turn declares that the defendant, finding himself unable to raise the required hand money, and believing the undertaldng to be beyond his financial ability, agreed that the plaintiff should take the title for herself and that he would become her tenant at a rental agreed upon between them. All of this he just as distinctly contradicts.

With the testimony in such a state it seems clear to us there is no ground upon which the findings of fact of the learned court below can be successfully assailed here. If these findings be adopted they justify the conclusion that the defendant had a bona fide claim to the land; that he was induced to confide in the promise of the plaintiff that she would purchase for his benefit and thus become the holder of the legal title. In that event “a subsequent denial by the latter (the plaintiff) is such a fraud as will convert the purchaser into a trustee ex maleficio:" Wolford v. Herrington, 86 Pa. 39; Cowperthwaite v. Bank of Carbondale, 102 Pa. 397; Boynton v. Housler, 73 Pa. 453. From an examination of these cases it appears that the principle relied on operates in favor of one who has any interest in the land or a bona fide claim to it, whether valid or not. In such cases the true doctrine is thus stated by Sharswood, J., in Wolford v. Herrington, 86 Pa. 39: “She was living on the land with her husband, who had a prior and perhaps better title. There was certainly sufficient evidence for the jury that she had a bona fide claim to the land. The case of Beegle v. Wentz, 55 Pa. 369, and Boynton v. Housler, 73 Pa. 453, settle that where one having any interest (except the defendant in the execution) is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter is such a fraud as will convert the purchaser into a trustee ex maleficio.” Applying this principle to the facts of the case in hand as found by the learned trial court, the conclusion reached that the plaintiff acquired the legal title subject to a trust in favor of the defendant rests upon a solid foundation and ought not to be disturbed.

But a proper execution of the trust requires not only that the defendant should be restored to the position he was originally intended by the parties to occupy, but also that the plaintiff in turn be given back the money with which this land was purchased at the instance and for the benefit of the defendant. That the learned trial court recognized this is shown by the following language taken from his opinion overruling the exceptions to the conclusions reached by him, viz.: “The defendant made a tender in court at the trial of the full amount of debt and accrued interest to that date. This is an acknowledgment of that amount being still due and owing and which is presumed to be in court. If it was not so placed and was retained by the defendant, he must account to the plaintiff for the amount of moneys which she furnished together with the accrued interest up to the date of this final decree and judgment and also all taxes by her paid and expended upon the premises in his behalf. It is not contended that, defendant shall procure title and deprive the plaintiff of her money.”

Nevertheless a general judgment without terms was entered in favor of the defendant. This would necessitate further litigation and subject the plaintiff to useless expense and delay in recovering her money, if not indeed to some risk of losing it entirely. The learned court below had ample power to have ascertained the precise amount in dollars and cents due to the plaintiff and to have entered a conditional judgment which would have secured to her the payment of that sum, at the same time giving to the defendant the title to the land, and thus ending the controversy. The record shows that at the conclusion of the trial the defendant made an informal offer or tender to pay $1,002.70, alleged to be all of the balance of the purchase money with interest thereon. The only objection made to this offer, as to the amount involved, was that it did not include the taxes. The counsel for defendant then stated: “We include that in the offer.” But there was no liquidation of this amount, and therefore, even if we assume that the plaintiff was satisfied with the calculation stated as to the amount of the purchase money and interest, there is yet left a gap which we are unable with certainty to fill from the record as it now stands.

The record must therefore go back so that the learned trial court may ascertain the full sum due from defendant to plaintiff and he is thereupon directed to enter judgment for the plaintiff for the premises described in the writ with six cents damages and costs; to be released however and judgment to be entered for defendant if within thirty days from entry of such judgment and notice thereof, he pay into court for the benefit of the plaintiff the sum so ascertained to be due her. She before lifting said money to deliver to defendant or file in court a quitclaim deed for the land in controversy. The costs of this appeal to be paid by appellee.

Judgment reversed and the record is remitted with direction to proceed in accordance with this opinion.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Commonwealth v. Wilson, Appellant.

      Criminal law — Forgery—Railroad tickets — Change of name of station— Evidence.

    1. One who personally uses a railroad ticket knowing that the name of a station originally written into the ticket had been erased and that the name of another station much further away, and for which a much greater fare is demanded is inserted, may be convicted of forgery both at common law and under sec. 169 of the Act of March 31,1860, P. L. 382.
    2. On the trial of an indictment for forgery a witness who was not an expert may be permitted to show the effect produced on ink and color by using a proprietary article, where a package of such article is shown by other evidence in the case to have been in the defendant’s possession.

      Evidence — Witness—Cross-examination—Reputation.
    3. A witness who testifies to the general good reputation of one accused may be tested by asking him on cross-examination as to reports he has heard, or contradictory statements he has made, or other facts known to him, not for the purpose of discrediting the person whose reputation is involved, but solely for the purpose of affecting the credibility of the witness.
    4. A witness called by the prisoner as a character witness, is properly excluded where it appears that he had seen the prisoner only a few hours each year on annual vacation visits, away from the community in which he resided, and that he did not know of any business transacted by the prisoner, nor of people who knew him.
    Argued April 12, 1910.
    Appeal, No. 38, Oct. T., 1910, by defendant, from judgment of Q. S. Clearfield Co., Dec. Sessions, 1909, No. 25, on verdict of guilty in case of Commonwealth v. D. A. Wilson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for forgery.
    In addition to the facts stated in the opinion of the Superior Court there was evidence which tended to show that the defendant used a railroad ticket in which the name “Riverview,” a station about seven miles from his point of departure, had been erased and the words “York Haven, via. Hbg.” had been written in its place. The fare from the place of departure to Harrisburg was $4.25. York Haven is a small place near Harrisburg.
    October 10, 1910:
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-19) various rulings on evidence and instructions, sufficiently stated in the opinion of the Superior Court.

      William I. Swoope, for appellant.

      Uazzard A. Murray, of Murray & O’Laughlin, with him J ames H. Kelley, district attorney, for appellee.
   Opinion by

Orlady, J.,

The indictment under which this defendant was tried and convicted contains two counts. The first charges that he did unlawfully and fraudulently make and sign, etc., a certain railroad ticket, etc., on which count he was found not guilty. The second count charges that “he did unlawfully and fraudulently utter and publish as true and genuine a certain unlawfully and fraudulently written instrument, a railroad ticket, which unlawfully and fraudulently written instrument was unlawfully and fraudulently uttered and published as true, by offering it as genuine to the conductor on the Pennsylvania railroad train and (giving an exact copy of the ticket) to the prejudice of the right of the Pennsylvania Railroad Company, thereby making it good as a railroad ticket for one first class passage from Grampian to York-haven instead of to Riverview as was the true and original ticket, with an intent to defraud it, the Pennsylvania Railroad Company at the time he so uttered and published the said ticket .... well knowing the same to bo a fraudulently written instrument, contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.” And on this second count the defendant was found guilty.

A motion to quash the indictment was made. First, because the offense charged does not constitute the crime of forgery under the laws of Pennsylvania; and second, because the facts set forth do not constitute a crime indictable under the laws of Pennsylvania, which was overruled and the defendant directed to plead to the indictment.

It is urged that sec. 169 of the penal code, Act of March 31, 1860, P. L. 382, under which the indictment was drawn, does not embrace the offense charged against the defendant and if he was liable to indictment at all it should have been under the Act of May 1, 1861, P. L. 465, which is a supplement to the earlier act. An examination of this later act shows that it was not intended to cover a case like the one under consideration, which discloses the unlawful use of a known fraudulently made ticket. Whereas the act of 1861 provides that whenever “any person in the employ of any railroad company, .... shall fraudulently neglect to cancel or return .... any coupon or other railroad ticket; or if any person shall steal or embezzle .... or shall fraudulently stamp or print or sign any such ticket or shall fraudulently sell or put into circulation any such ticket. . . .” This act is not intended to apply to a case where one personally uses for passage a fraudulently made ticket; had it been so intended the legislature would have adopted the word “use” as a verb, which is not, however, to be found in the act.

A further motion was made by the defendant to compel the commonwealth to elect upon which count a conviction was asked, and this was refused. The counts were not inconsistent and did not embarrass the defendant on his trial, for the reason that a conviction was asked upon both of them, — for making as well as for uttering and using, the theory of the commonwealth being that both acts were consummated by the defendant, and that all the evidence to be adduced would be in support of that contention. This being the case, and no special reason for such election having been urged, the court rightly refused the motion.

Section 169 of our penal code of March 31, 1860, P. L. 382, provides: “If any person shall fraudulently make, sign, alter, utter or publish, or be concerned in the fraudulently making, signing, altering, uttering or publishing any written instrument, other than notes, bills, checks or drafts already mentioned, to the prejudice of another's right, with intent to defraud any person' or body corporate, or shall fraudulently cause or procure the same to be done, he shall be guilty of a misdemeanor,” etc. The commissioners who reported this code to the legislature say of this section, that “it was intended to embrace the large class of forgeries of written instruments, not embraced in the preceding sections, which have special reference to bank paper and which are not punished at common law.”

The crime of forgery, at the present time, extends to a large number of subjects which were not in existence in the earlier periods of the criminal law, and some of them, in fact, have had their origin in the last half century. A railroad ticket such as is now in daily use was not in existence when the penal code was enacted; but the writing in this case, — the ticket, — is covered by all definitions and descriptions of the crime of forgery. Our code was not intended, because it could not possibly do so, to embrace all of the appliances, devices and methods of transacting our affairs; and as stated by the commissioners, “The common-law definitions of crimes are so clear, perspicuous and precise; the modes of proof, rules of evidence, and manner of procedure in criminal investigation are so well settled and known, that it is doubtful if they could be improved upon by a more skillful codification.” The common law, as modified by our code, embraces the written instrument described in this indictment.

A railroad ticket has been held to be a receipt, a voucher, a contract, conclusive of a passenger’s right to carriage, is transferable by delivery, represents a valuable consideration, and is property; and the fraudulent counterfeiting of such a ticket has been held to be forgery at common law: Com. v. Ray, 69 Mass. 441. In England the forgery of a railway pass, Regina v. Boult, 2 Car. & Kir. 604, as well as in this country in State v. Weaver, 94 N. C. 836; s. c., 55 Am. Repr. 647, has likewise been held to be forgery. In Biles v. Com., 32 Pa. 529, the Supreme Court refers with approval to Queen v. Griffith, 27 Law J. M. Cas. 204, in which case a station master of a railway company was held guilty of forgery in affixing a false receipt stamp to a printed form. Judge Ludlow in Com. v. Cullen, 13 Phila. 442, says: “I happen to be familiar with this section of the criminal code. After Biles’ case had been affirmed by the Supreme Court (1859) in 32 Pa. 529, the commissioners determined to settle the question of what should be forgery in this state, and for that purpose framed sec. 169 of the code. Its provisions are, and were intended to be sweeping.”

Text-writers and judges agree that as a general rule any writing in such form as to be the means of defrauding another may be the subject of forgery, or of alteration in the nature of forgery. The offense may be committed in respect to any writing; which, if genuine would operate as the foundation of another’s liability. If it is calculated to deceive and intended to be used for a fraudulent purpose, — that is sufficient: 13 Am. & Eng. Ency. of Law, (2d ed.) 1093. The offense of uttering a forged instrument consists in offering to another a false instrument which has capacity to injure, with a knowledge of its falsity, and with an intent to defraud: Whart. Crim. Law (11th ed.), sec. 703.

The terms “writing,” “instrument” and “written instrument” are used indiscriminately in defining forgery at common law. Thus Blackstone says forgery is the fraudulent making or alteration of a writing, etc. Baron Eyre says it is the false making of an instrument, etc. Grose, J., says it is the false making of a note or other instrument, etc. East says it is the false making of a written instrument: 2 East’s P. C. 852. And we can see no reason why the term “any written instrument, other than notes, bills, checks, or drafts already mentioned” as used in sec. 169 of our code should not be understood in the same sense, as when used by these early writers in defining forgery at common law, and be held to include a railroad ticket such'as is described in this indictment. Many instances and illustrations may be found in Arnold v. Cost, 3 Gill & Johnson, 219; s. c., 22 Am. Dec. 302; see also as to a theater ticket, In re Benson, 34 Fed. Repr. 649; and as to an insurance ticket, People v. Graham, 43 N. Y. Super. Ct. 151. In all the cases an intent to defraud is an indispensable ingredient and is the very gist of the offense, Com. v. Ladd, 15 Mass. 526; and this must be clearly set out in the indictment. It follows that every requisite of definition in the law, and notice to the defendant was observed in the indictment; which was properly drawn under sec. 169 of our code. The first, second, eighth and eighteenth assignments of error are overruled.

The record discloses a series of facts which are exceptional in their clearness and certainty. It is manifest that this defendant was under suspicion, and his conduct was carefully observed so as to develop the material incidents by the testimony of witnesses who might and did testify from .their personal observation and knowledge. The direction to purchase a ticket from Grampian to Riverview was shown by his friend and associate, who reluctantly testified to this important fact. The transmission of this ticket together with a package, which had been procured by the defendant and was identified by three disinterested witnesses as being “Carter’s Ink Eraser,” as well as the tests made of that material’s efficacy in removing ink marks before it was delivered with the special ticket, which in turn had been identified by the agent who sold it and had made a memorandum of its serial and station number; and the defendant’s use of the ticket with the knowledge that the price of the ticket as originally issued was but twenty-five ’ cents, and as changed by substituting Yorkhaven for Riverview was worth more than $4.00; the fact that witness Hahn was corroborated by three eye-witnesses, and the conductor on the train who had been advised in advance to look out for this specially numbered ticket, as well as the special officer who made the arrest, all combined to furnish proof in regard to the genuine ticket as issued by the company and the altered ticket as presented by the defendant, that could not be answered.

The witness, Sparling, did not pretend to be an expert, nor was he examined as such; his testimony in relation to the “Carter’s Ink Eraser” on the trial was but an exhibition of the effect produced on ink and color by using that common proprietary article. Any juror could have given the same demonstration, and its fairness was made apparent when done before the jury in the presence of the defendant and his counsel. The damaging fact was that this “Carter’s Ink Eraser” as used in the court was an exactly similar package and preparation as to its size, name, and efficacy as the one which Wolfley, the associate of the defendant from Harrisburg, had put in the pocket of the defendant’s coat at Grampian to be taken by Hahn, together with the Riverview ticket to the camp where the defendant was waiting for it. By the testimony of Williams, the agent of the company who sold the ticket, and of Hahn, the ticket was genuine when at Grampian, and altered when presented for passage a day or so thereafter to the conductor of the train. The testimony of Sparling was properly admitted and the defendant had full opportunity of verifying the tests he made before the jury by a proper cross-examination. The third, fourth, fifth and fourteenth assignments of error are overruled.

The defendant opened a wide door in putting his character in evidence as a defense, and the error complained of in the sixth assignment would be more serious if offered by the commonwealth; but the witness Spade was called by the defendant and after having stated that he had “never heard anything against him,” was asked on cross-examination “if he did not know of Wilson having been arrested for attempting to pass counterfeit money,” and on objection being made, the court held that the commonwealth had the right to cross-examine the witness as to Wilson’s reputation for honesty and good character, because he had put that in question. A witness who testifies to the general good reputation of one accused may be tested by asking him on cross-examination as to reports which he has heard or contradictory statements he has made, or other facts known to him, not for the purpose of discrediting the person whose reputation is involved, but solely for the purpose of affecting the credibility of the witness. In this case the question did no harm, as the answer was in the defendant’s favor; the witness having stated “that all the officers concerned said it was but spite work and he was discharged by the Mayor and there was never any prosecution.” The general rule in such cases is announced, in 8 Ency. of PI & Prac. 115, to be “A witness who testifies to the good reputation of a party or another witness may be cross-questioned concerning specific facts and rumors which are inconsistent with his direct testimony. This is permitted, not for the purpose of proving such facts, but to weaken the force of his direct testimony. So, also, a witness who testifies to the bad character or reputation of another person may be cross-examined as to the specific facts upon which his conclusion is based, in order that the jury may properly estimate the value of his testimony.”

The testimony of Grant Wood, called by the defendant as a character witness, was properly excluded; as he had seen him but a few hours each year on annual vacation visits, away from the community in which he resided, and did not know of any business transacted by the defendant, or of people who knew him. This is too meager in facts or knowledge of reputation of the defendant to give any idea of his general reputation at home or at Grampian.

The case was submitted to the jury in a clear, fair and adequate charge which fully presented the defense as to each count; and the court affirmed the defendant’s point as to good character, so that feature of the case was brought prominently to the attention of the jury. There is nothing in this record to indicate any abuse of discretion in imposing the sentence of which complaint is made. No one of the assignments of error is sustained. The judgment of the court of quarter sessions is affirmed, and it is ordered that the defendant appear in the court below at such time as he ma,y be called, and that he be then committed to serve that portion of his term of imprisonment which had not expired at the time this appeal was made a supersedeas.


author: Head, J.,

text:
    Central Market Company, Appellant, v. City of Erie.

      Municipalities — Police power — Markets—Regulation of markets — Ordinances.

    1. An ordinance of a municipality forbidding any person “to purchase or sell within or about any market or market places in the city, any fruit, butter .... or other provisions for the purpose of selling the same,” and imposing a money penalty for a violation of the ordinance, is an invalid exercise of the police power, and cannot be enforced.
    2. Where a municipality undertakes to enact an ordinance restricting the natural rights of its citizens to buy and sell commodities at such time, places, and under such terms as they may elect, such regulations must find a justification in some public necessity, such as the preservation of the public health, the protection of public morals, the promotion of easy traffic along the highways, etc.

      Submitted April 11, 1910.
    Appeal, No. 152, April T., 1910, by plaintiffs, from decree of C. P. Erie Co., Feb. T., 1909, No. 8, dismissing bill in equity in case of Central Market Company, F. M. Feasler and John E. Zeiser v. City of Erie.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      Frank Gunnison, John B. Billing and Henry E. Fish, for appellant.
    We contend that the ordinance is not a reasonable exercise either of the police power of the city, or of the power conferred by sec. 33 of the Act of May 23, 1889, P. L. 291, “to provide and enforce suitable general market regulations:” Twelfth Street Market Co. v. R. R. Co., 142 Pa. 580; Wartman v. Phila., 33 Pa. 202; Mt. Carmel v. Fisher, 21 Pa. Superior Ct. 643; Barton v. Morris, 10 Phila. 360.
    Charles. P. Hewes, for appellee.
    The ordinance in suit is intended to prevent forestalling the market; to confine ■the business to retail to prevent the buying up of food and provisions by middle men and hucksters, at the market houses, and then raising the prices to the consumers. Its purpose is not to restrain trade: Mayor of Philadephia v. Davis, 6 W. & S. 269.
    By the common law of Pennsylvania every municipal corporation having the power to make by-laws and establish ordinances to promote the general welfare and preserve the peace of a town or city may fix the time and place of holding public markets for the sale of food, regulate the same and shift them from place to place as the public convenience demands: Mayor of Phila, v. Davis, 6 W. & S. 269; Wartman v. Phila., 33 Pa. 202; Denehey v. Harrisburg, 2 Pears. 330; Strickland v. Penna. R. R. Co., 154 Pa. 348; Hughes v. Farmers' Assn., 1 Phila. 338.
    October 10, 1910:
    A city ordinance is not unconstitutional and void because it forbids any person to purchase within a market, during market hours, any fruit, butter, eggs, vegetables, or other provisions for the purpose of selling the same: Meadville v. Miller, 29 Pa. C. C. Rep. 517.
   Opinion by

Head, J.,

Central Market Company, one of the plaintiffs, is a corporation created under the general act of 1874. It has owned for many years a valuable piece of land in the city of Erie. Under a contract with the city, made in 1893, it erected and equipped a building suitable for a market house, and since that date, under the terms of said contract, there has been maintained therein a public market. The plaintiff company has been permitted to exercise and enjoy the rights conferred upon it by that contract, and the city without complaint has exercised and continues to exercise in relation to said market “such" powers as would include supervision for purposes of cleanliness, ventilation, inspection of the quality of the articles sold, and -the weights and measures employed in making sales.”

F. M. Feasler, another plaintiff, is and has been for a long time a lessee of one or more stalls in said market house where he conducts the business of selling marketable provisions, some of which are produced by himself and some of which he purchases. John E. Zeiser, the remaining plaintiff, is a retail grocer in the said city engaged in the sale of like provisions which he buys where he can buy to the best advantage, including the market referred to.

In January, 1908, the city adopted an ordinance, sec. 1 of which provides, “It shall be unlawful for any person or persons to purchase or sell within or about any market or market places in the city of Erie, any fruit, butter, .... or other provisions for the purpose of- selling the same.” Section 2 provides, “Any person or persons violating the provisions of this ordinance shall suffer a penalty of $25.00 for each offense.” The plaintiffs then filed this bill setting forth the facts already adverted to and many others tending to show that their respective investments and business would be greatly injured, if not destroyed, by the enforcement of such ordinance, and that no public interest would be subserved thereby; that the ordinance was arbitrary, unreasonable and oppressive, and they therefore prayed for an injunction to restrain the city and its officers from enforcing the same. A preliminary injunction was awarded. The city, making no answer and setting up no facts, filed a general demurrer to the bill and the cause came on for final hearing on bill and demurrer. After argument the learned judge below sustained the demurrer, dissolved the preliminary injunction and dismissed the bill, and the plaintiffs appeal.

Although the plaintiff company was organized for the purpose of conducting a market, and actually does conduct one in the manner already recited, it remains simply a private corporation: Twelfth Street Market Company v. Railroad Company, 142 Pa. 580; Strickland v. Penna. R. R. Co., 154 Pa. 348.

But if this be true, it is none the less true that the business of conducting a market, whether carried on by a corporation, unincorporated association, or even a private citizen, is, within proper limitations, subject to the supervision and control of the police power of the municipality in which the market is maintained. This has been so long and so universally recognized that even to cite the decisions in this country and England affirming it would be but a useless parade of learning easily accessible to anyone interested.

The present plaintiffs, not denying the right of the city to make proper regulations as to the conduct of the market, and not contending that the general police power vested in the city of Erie has been diminished or restricted by the terms of a contract made by a city council many years ago, earnestly insist, however, that such power can be lawfully exercised only to secure or protect the common public health, morals, safety or welfare, and that any exercise of it where no such necessity appears is arbitrary and unreasonable. This contention raises the single issue presented by this record.

The question whether or not any given exercise of power by a municipality falls fairly within the scope of what is known as its police power has always been considered a judicial question. Our courts, however, whilst determining in each case as it arose whether the ordinance or regulation complained of was or was not a valid exercise of such power, have been necessarily reluctant to attempt to define in general terms the limitations of that power. We say necessarily because the police power of a state is, in essence and substance, but the inherent right of every organization that has life to repel attacks hurtful to or destructive of it. In nature every form of organized life is subject to such attacks, and its continued existence must necessarily depend on its ability to successfully resist them. The modes in which this resisting power can be most effectively exercised must necessarily be as varied as the attacks which impel its exercise, and these constantly change with the changing conditions of the organized life affected. In this respect the civic organization we call a state is subject to the same varying and hurtful attacks, and as a consequence the exact limitations of its power Of defense and the manner of its exercise cannot well be at any time measured by fixed rules or confined within designated boundaries.

But a municipality cannot finally determine for itself the extent to which and the conditions under which this power may be rightfully exercised any more than an individual can finally decide for himself that his. act in killing or seriously wounding another in his own defense was justifiable although the abstract right of self-defense be fully conceded.

When therefore a municipality undertakes to enact an ordinance restricting the natural right, of its citizens to buy and sell commodities at such times, places, and under such terms as they may elect, such regulations must find their justification in some public necessity such as the preservation of the public health, the protection of public morals, the promotion of easy traffic along the public highways, etc. An examination of the numerous cases in our own and other states shows that wherever such ordinances have been sustained by our courts of last resort the decisions have rested on the principle indicated. The preservation of the public health, for' instance, requires that articles of food sold to the citizens of a community be sound and wholesome. This begets the right and duty of public inspection, and, in order that such inspection may be performed effectively and with reasonable convenience, the city may designate the places where such provisions may be sold and prohibit their sale at other places: State of Louisiana v. Sarradat, 24 L. R. A. 584 (46 La. 700). For the same reason regulations establishing sanitary conditions in and about the places where such food is sold have been sustained. The public right to have the streets of a municipality kept open and free from obstruction for general travel furnishes satisfactory ground for sustaining an ordinance limiting the days and hours when curbstone markets may be held in a borough: Mt. Carmel Borough v. Fisher, 21 Pa. Superior Ct. 643.

And generally, the extent to which police regulations concerning markets have been heretofore sustained is fairly described in the following language quoted from the opinion of Mr. Justice Williams in Strickland v. Penna. R. R. Co., 154 Pa. 348: “The right to regulate the markets includes a general supervision for purposes of cleanliness and ventilation, for the inspection of the quality of the articles sold, and the weights and measures employed in making sales. The municipality may require diseased or unwholesome articles to be removed, and enforce such regulations as seem desirable for the protection of the public health. The essential elements of a market are summarized in 14 Am. & Eng. Ency. of Law, 466. They are as follows: (1) A place where sales may be made to the public. (2) The necessary and convenient fixtures for the business of weighing, dividing, measuring, and selling. (3) A system of police regulations fixing market days, or hours, providing for the lighting, cleaning, and watching of the market, and for testing and correcting the weights, measures and qualities of things sold. (4) Market officers authorized to enforce such police regulations for the protection of both buyers and sellers.”

In no case that we have examined have police regulations any broader than the language above quoted been sustained by the courts. In the present case the ordinance of 1893 and the contract following it expressly reserved to the city the right to use its supervisory police power to the full extent of the language we have quoted. There is no complaint on the part of these plaintiffs concerning that contract and no denial of the right of the city to fully exercise its police power to that extent; and the plaintiffs go farther and agree that if a public necessity should arise for police regulation of the market that would go beyond the powers expressly reserved in the contract, such power could be lawfully exercised because it would not be competent for one city council to enter into a contract, the effect of which would be to abridge the police power delegated by the state to the city as one of its municipal agents.

The ordinance complained of,-however, in our opinion goes far beyond the limitations mentioned and beyond any that have been sustained by our courts of last resort. It provides that it shall be unlawful to purchase or sell provisions within or about the market place “for the purpose of selling the same.” There is no qualification as to character, time, manner or extent of the sales forbidden except that contained in the words quoted. It is easy enough to see that one who buys may have the “purpose” or intention of selling what he has bought; but it requires some effort to understand how he who sells goods in the market can have either “purpose” or intention of selling them again. These words aptly describe the mental attitude of a man towards his own conduct or actions in the future; not towards those of another which he cannot control.

It is true the plaintiff, .Feasler, when he made a sale from his stall might have the expectation or belief, founded on observation or information, that his vendee purposed or intended to sell the goods he had just bought. But it requires a liberal interpretation of a penal statute to impute to the “purpose” or intention of Feasler the act of another that he neither solicited nor induced, in which he had no interest and over which he had no control.

When the farmer comes regularly with the products of his vegetable or poultry farm and sells them to the stall owners in the market he certainly sells them within or about the market place. He has every reason to expect and believe they will be sold again. Are such sales forbidden by this ordinance? If so, how are the stalls to be supplied with the provisions the consumers expect to find there? Other illustrations showing the useless hardships that would result to the plaintiff referred to and others like him will readily occur.

The other plaintiff is a grocer in some distant part of the city, how far from the market house the record does not disclose. His business exists because his patrons in his neighborhood find it to their convenience or advantage to buy from him. He in turn has the natural right to buy the fruit, vegetables, etc., that his patrons require where he can buy to the best advantage. If he can buy some from one stall in the market, some from another, and his patrons prefer to accept his selections brought to their immediate vicinity, rather than expend the time and trouble necessary to go to market and select for themselves, in what way is the public injured thereby?

As we have said, the city has chosen to demur to the plaintiffs’ bill and brings upon the record no facts from which we can perceive that this ordinance is founded on any public necessity or requirement whatever. That its enforcement would seriously injure the plaintiffs cannot we think be doubted. When the record then is barren of anything upon which we could rest a conclusion that such an interference with the business and property of private citizens is necessary to preserve the public health, to promote the public welfare, to uphold the public morals, to keep the highways open or prevent a breach of the peace, we are unable to find any justification for an ordinance of such a drastic character.

We are not to be understood as holding that because no case has yet been decided where such an exercise of police power as is here complained of has been sustained that such power has reached the limits within which it may be rightfully exercised. We have no intention of attempting to say that conditions might not arise which might require an even more stringent exercise of the state’s police power than any that have yet been recognized or approved. We only hold that as the record in the present case is made up we are unable to find within it anything to justify this ordinance, which without the foundation of a public necessity seems to us to be oppressive, unnecessary and unreasonable.

The learned court below should therefore have overruled the demurrer and required the defendants to answer or have the bill taken pro confesso. We do not understand there is any issue of fact between the parties but rule 36 prescribes the procedure to reach a final decree.

The decree is reversed, the bill and injunction are reinstated and the record is remitted with direction to proceed as required by rule 36, equity rules. The costs of this appeal to be paid by appellee.

Henderson, J., dissents.


author: Rice, P. J.,

text:
    Second National Bank of Titusville, Appellant, v. Thompson.

      Banks and banking — Deposits—Statute of limitations.

    1. The engagement of a bank with its depositor is not to pay absolutely and immediately, but only when payment shall be requested or demanded at the banking house. Until such demand is made the statute of limitations does not begin to run in favor of the bank and against the depositor. The fact that the depositor has had the account in the deposit book balanced does not affect the applicability of the rule.

      Banks and banking — Two accounts by the same depositor — Account stated.

      2. Where a depositor of a bank opens a second and separate account for which she receives a new deposit book and the depositor is not required to surrender the old book, and afterwards she ceases to draw on the old account and only uses the new account, a subsequent balancing of the new account and return of the vouchers, without anything to indicate that the new account was a continuation of the old one, has not the effect of an account stated as against a balance due upon the old account.

      Banks and banking — Deposit—Presumption of payment — Evidence.
    3. In an action against a bank to recover a balance, a presumption of payment after twenty years is rebutted by the positive and uncontradicted testimony of the depositor that the balance claimed had never been paid by the bank or any part of it drawn out by the depositor. In such a case the case is for the jury to pass upon the credibility of the testimony of the depositor.
    4. The presumption which the law raises after a lapse of twenty years is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action; the former prima facie of obliteration of the debt. The presumption is equal to direct proof of payment, and it will prevail until overcome by direct proof of nonpayment, or the proof of facts and circumstances from which nonpayment may be clearly inferred.
    Argued April 12, 1910.
    Appeal, No. 178, April T., 1910, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1909, No. 55, on verdict for defendant in case of Second National Bank of Titusville v. E. K. Thompson.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover money alleged to have been paid by mistake to the paying teller of a bank. Before Prather, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned amongst others was in refusing binding instructions for plaintiff.

      Samuel Grumbine and Frank J. Thomas, for appellant.
    It has been decided many times in Pennsylvania that the rule as to the presumption of payment arises upon all. kinds of indebtedness whether upon specialty or otherwise, and has been applied to a bank deposit in the case of Ashton v. Philadelphia National Bank, 2 Chest. Co. 479.
    A statute of limitation is a legislative bar to the right of action, but the presumption of payment from the lapse of time is not a bar at all but simply a rule of evidence, affecting the burden of proof: Miller v. Overseers, 17 Pa. Superior Ct. 159; Ash’s Est., 202 Pa. 422; Penn Bank’s Est., 152 Pa. 65; Farry v. Bank, 58 Atl. Repr. 305.
    Whether the presumption of payment is sufficiently rebutted is a question of law for the court and not the jury. The presumption is one drawn by the law itself from a given state of facts, and whether it exists or not is necessarily for the court: Reed v. Reed, 46 Pa. 239; Beale v. Kirk, 84 Pa. 415; Peters’s App., 106 Pa. 340; Gregory v. Com., 121 Pa. 611; Porter v. Nelson, 121 Pa. 628.
    A balance struck in a pass book is in effect an account stated between a bank and a depositor, which it is true may be impeached for fraud or error. The presumption is that the balance stated by its own officers is correct and truly represents the account between the parties: Greenhalgh v. Bank, 226 Pa. 184; Thompson v. Fisher, 13 Pa. 310; United Security Life Ins., etc., Co. v. Bank, 185 Pa. 586; Myers v. Nat. Bank, 193 Pa. 1; Leather Mfrs.’ Nat. Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. Repr. 657).
    October 10, 1910:

      Axtell J. Byles and Oeo. F. Davenport, with them M. J. Heywang, for appellee.
    The statute of limitations does not begin to run against a deposit until after demand made: Girard Bank v. Bank of Penn. Township, 39 Pa. 92; Finkbone’s App., 86 Pa. 368; McGough v. Jamison, 107 Pa. 336; Humphrey v. Bank, 113 Pa. 417; Swearingen v. Dairy Co., 198 Pa. 68; Cook v. Carpenter, 212 Pa. 165; Morrison v. Blake, 33 Pa. Superior Ct. 290; Smith v. Smith, 38 Pa. Superior Ct. 251.
    We submit that upon no reason or authority can the theory of account stated be carried beyond the very account in question, item for item and entry for entry: Auzerais v. Naglee, 15 Pac. Repr. 371.
    Under the circumstances of this case, the presumption of payment does not arise by reason of lapse of time: Eby v. Eby, 5 Pa. 461; Reed v. Reed, 46 Pa. 239; Phila. Trust Co. v. R. R. Co., 160 Pa. 590; DeHaven’s Est., 215 Pa. 549; Devereux’s App., 184 Pa. 429; Richards v. Walp, 221 Pa. 412.
   Opinion by

Rice, P. J.,

On May 25, 1888, the defendant deposited $700 with the plaintiff bank in the name of and as a gift to his wife, and received from the bank an ordinary deposit book issued in her name, which he delivered to her and which she retained until the time of trial. There was the following printed indorsement on the book: “This book belongs to the bank. No entries are to be made in it except at the bank and by an officer of the bank. It is to be returned to the bank at the end of each month to be written up and examined. Overdrafts will not be paid.” It appears by the entries in the book that the bank charged itself with this deposit and, in the following month, with an additional deposit of $75.00, took credit for a payment of $113.60 in August of the same year, and on January 15, 1889, stated a balance of $661.40 in her favor. No further entries were made in the book. On April 12, 1909, the defendant presented to the bank the check of his wife for $661.40, payable to himself, and received payment. This action was brought in June following to recover back the money upon the ground that it was paid by mistake. We need not recite the evidence relative to the allegation of mistake. The case has been argued as if it were an action by Mary W. Thompson against the bank to recover $661.40, the balance shown by her book, and we will consider it in the same view.

1. The contention that her right to recover was barred by the statute of limitations cannot be sustained. The engagement of a bank with its depositor is not to pay absolutely and immediately, but when payment shall be requested at the banking house. “Such are the terms of the contract implied in the transaction of receiving money on deposit, terms necessary alike to the depositor and the banker. And it is only because such is the contract, that the bank is not under the obligation of a common debtor to go after its customer and return the deposit wherever he may be found. Hence it follows, that no right of action exists, and the statute of limitations does not begin to run until the demand stipulated for in the contract has been duly made:” Girard Bank v. Bank of Penn Twp., 39 Pa. 92. Having regard to the reason of the rule, the mere fact that the depositor has had the account in his deposit book balanced cannot affect its applicability. The nature of the contract is not thereby changed so as to dispense with the necessity of making demand before bringing suit to recover the balance, and, this being so, it is apparent that the statute does not begin to run until demand has been made. There are acts from which a waiver of demand by the depositor will be implied, and amongst these is notification to him by the bank that his claim will not be paid, also the rendition-to him by the bank of an account in which it claims the money as its own: 1 Morse on Banks and Banking (3d ed.), sec. 322. Penn Bank’s Est., Walters’s App., 152 Pa. 65, belongs to the class of cases in which this exception to, or qualification of, the general rule is recognized. There was not merely a balancing of the debtor’s account, but distinct notice to him that the bank claimed that all the money deposited by him had been drawn out, indeed, that his account was overdrawn. For more than six years the depositor acquiesced in the correctness of the account. And hence it was held, inter alia, that his right of action was barred. It is not apparent how this case can be regarded as authority against the general rule, that a demand, or some act on the part of the bank dispensing with it, is necessary to set in motion the statute of limitations against the right to recover a general deposit.

2. On July 6, 1907, the defendant made another deposit of $200 in the plaintiff bank in the name of and as a gift to his wife, and received a deposit book therefor, which he delivered to her. This account was balanced and vouchers were returned to Mrs. Thompson four times, and the account was finally closed in 1908. When this account was opened nothing was said, so far as the evidence shows, about the old book issued in 1888, nor was the book returned to or demanded by the bank. The checks drawn after the new account was opened were charged against that deposit, and, so far as affirmatively appears, the state of the old account was not taken into consideration by either party when the new account was opened or when the book showing that account was balanced. The opening of two accounts by the same depositor in the same name may be unusual in banking practice; but it is not contrary to reason, under the evidence in this case, that Mrs. Thompson intended, as she testified, to keep the two accounts separate and not draw on the first until some exceptional emergency should make it necessary to do so. And the bank manifested its acquiescence in her opening a separate account, by the manner in which it was stated in the new book it gave her and not calling for the surrender, or even the production, of the old book, which, according to the indorsement on it, was the property of the bank. As already pointed out, the manner in which the account was stated in this book gives no indication that it was a continuation of, or had any connection with, the former account. In view of all the facts, the court committed no error in refusing to charge unqualifiedly that the transactions relating to the second account had the effect of an account stated and conclusively estopped her from recovering the balance shown by the old book, even though the jury believed her positive testimony that it had not been paid. We think the learned judge took the correct view in holding that, under the evidence, the balancing of Mrs. Thompson’s account opened in 1907, and the return of the vouchers, had the effect of an account stated and was conclusive as to the items of that account, and that, whilst her acquiescence in that statement, together with the circumstance of her long delay in making demand for another balance than-that shown by her last account, were facts which might legitimately shake the faith of the jury as to the correctness of her present claim, yet they did not conclusively estop her.

3. The remaining question to be considered is as to the presumption of payment from lapse of time. It is argued by appellee’s counsel that the doctrine does not apply to an action to recover a bank deposit. As we view the case, it is not necessary to consider that question. The court charged that it did apply to the case and that the burden was on the defendant to satisfy them, by clear and convincing testimony, that the balance shown by Mrs. Thompson’s deposit book had not been paid. If the question was to go to the jury, it cannot be claimed that the instructions as to the burden of proof and as to the quality of evidence required to rebut the presumption were not as favorable to the appellant as it had a right to ask. The question then is as to the sufficiency of the evidence. The presumption which the law raises after a lapse of twenty years is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action; the former prima facie obliterates the debt: Reed v. Reed, 46 Pa. 239. The presumption of payment is raised by an artificial rule. It cannot be rebutted except by evidence which will create a natural presumption at least equally strong: Sellers v. Holman, 20 Pa. 321. The presumption is equal to direct proof of payment, and it will prevail until overcome by direct proof of nonpayment or the proof of facts and circumstances from which nonpayment may be clearly inferred: Richards v. Walp, 221 Pa. 412. It has been said that whether or not the facts and circumstances relied on would, if true, legitimately give rise to a presumption of fact that would rebut the prima facie presumption of payment, is a question of law for the court; but whether or not the matters of fact alleged are true, is a question for the jury: Gregory v. Com., 121 Pa. 611. Here the party upon whom the court cast the burden of proving nonpayment did not rely merely on a presumption or inference of fact drawn from other facts and circumstances, but upon the direct and positive testimony of the depositor that the balance of $661.40 had never been paid by the bank and that nothing had been drawn out of the fund deposited in 1888 after payment of her check for $113.60. She was not contradicted by any direct testimony, nor by the books of the bank, for they had been destroyed. The circumstances relied upon by the appellant to affect the truth of her testimony were not such as to conclusively discredit her; they went only to her credibility, which was for the jury. Nor is her testimony based on hearsay or inference. She knew, because she was the only person who had a right to draw the money, whether the debt had been paid. In short, the facts testified to by her were sufficient in law to rebut the presumption of payment. Whether or not she testified truly, was a question for the jury and not for the court. The case of Miller v. Overseers of the Poor, 17 Pa. Superior Ct. 159, upon which appellant’s counsel places great reliance, is plainly distinguishable from the present case. That was a scire facias upon a judgment of a justice of the peace. Thirty years had elapsed between the date of judgment and the issuing of the scire facias. We held that the plaintiff’s testimony that the amount of the judgment had not been paid to him was not sufficient in law to completely rebut the presumption of payment, because it might have been paid to the justice, and, indeed, it was not too much to say that this is the most common way of discharging such debt. But here the only person who could lawfully draw upon the fund, or to whom the fund could be paid lawfully, testified emphatically that she had not drawn upon the fund and that it had never been paid to her. There is no possible way in which a finding that the bank may have discharged the debt can be reconciled with her testimony. It necessarily follows that binding instruction that the presumption of payment had not been completely rebutted would have been clearly erroneous.

The case was well tried and was submitted to the jury in a clear, adequate and impartial charge.

The assignments are overruled and the judgment is affirmed.


author: Orlady J.,

text:
    Glenn v. Colonial Assurance Company, Appellant.

      Insurance — Fire insurance — Notice to produce books.

    Where all the books of account and vouchers of a person insured are burnt in a fire, and the insurance company notifies the insured to produce his books and papers at an office named within any time during the succeeding month, but the company has no person at the office to receive the books and papers, and after the expiration of the month the insured notifies the company that he will produce the papers and vouchers at the place designated on such a day, and the company keeps the office closed during the whole day, the company cannot claim as a defense to an action on the policy that it was not given an opportunity to examine the books and papers of the insured.
    Argued April 13, 1910.
    Appeal, No. 12, April T., 1910, by defendant, from judgment of C. P. Venango Co., Jan. T., 1909, No. 11, on verdict for plaintiff, in case of R. F. Glenn, trustee in bankruptcy of R. J. Dick, v. Colonial Assurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Criswell, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $691.85. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. K. Jennings, with him D. C. Jennings, George Quintará Horwitz and Thomas Matthews, for appellant,
    cited: Langan v. Ins. Co., 162 Pa. 357; Seibel v. Ins. Co., 197 Pa. 106; Mispelhorn v. Ins. Co., 53 Md. 473; O’Brien v. Ins. Co., 63 N. Y. 108.

      James S. Carmichael, for appellee.

      October 10, 1910:
   Opinion by

Orlady J.,

The special reasons that were given by the company for returning the proofs of loss that had been furnished by the insured were, first, that they were not accompanied by a certificate of a magistrate or notary public as required by the policy; which omission was promptly remedied by the insured furnishing a proper certificate that was accepted and retained by the company without any further objection; second, the noncompliance with a notice given January 27, 1908, to produce for examination books of account, etc., at such reasonable place as might be designated by the company and to permit extracts and copies thereof to be made. The notice accompanying the return of the proofs of loss concluded as follows: “We designate the office of Charles E. Smith & Son, Franklin, Pa. as such place and any time before March 1, 1908.”

The stock of merchandise covered by the policy in suit, as well as the books of account, vouchers, etc., of the insured were totally consumed by fire November 19, 1907, which fact was well known by the company very soon after the fire occurred, so that all proof and explanation that could reasonably be expected by the company would be duplicate bills and such other evidence of the value of the property as the insured might be able to secure and present to the adjuster who acted for the company. We held in Seibel v. Firemen’s Ins. Co., 24 Pa. Superior Ct. 154, which case was affirmed by the Supreme Court in 212 Pa. 604, in regard to á similar clause, that, “The provision of the contract is a reasonable one, and the plaintiff upon notice would be bound to comply therewith, but, in order to entitle the defendant to the advantage of it, a place must be designated at which the plaintiff is bound to perform his part of the undertaking.” In that case, no particular place was named at which the insured was requested to submit his books, etc., and we held that “if the defendant desired to examine the books of account, etc., of the plaintiff, it became its duty not only to notify him of the fact, but to appoint a place at which they might be produced for inspection, which place was not to be arbitrarily fixed by the company, but must be a reasonable one as provided by the contract.”

In this case the question turns on what is a reasonable time as well as a reasonable place for the insured to comply with such a notice.

The adjuster of the company, W. D. Stroble, Jr., who wrote the letter and notice of January 27, was examined as a witness for the defendant, testified that he had not given any notice to the plaintiff to meet him on any named day or hour between January 27 and March 1, and further, that there was not any person at the place named in the notice between the dates mentioned, who was authorized to act for the company in receiving or examining the evidence of loss as might be submitted. Another adjuster, J. J. Campbell, testified that Mr. Smith, whose office was designated as the place, had no knowledge of the notice or date of such a meeting.

The policy provides that the books, etc., be exhibited to a person designated, but this notice designates only an office but does not name a person. The fair purpose of such a notice and the meeting of the parties which is expected to follow it, is to exhibit the evidence of the loss to a person authorized to pass upon its credibility, to examine into the facts and have explanation made of doubtful matters in order to determine the honesty and legality of the plaintiff’s claim. Each party has a right to exact and practice the same good faith and fair dealing which should control a transaction between business men.

The purpose of the notice being to develop the truth and prevent expensive litigation by a fair adjustment of an honest loss, it should be interpreted in the light of its purpose. To name a place for such a meeting and not have a representative at that place is not good faith, and to designate a time which is so indefinite that it could not reasonably be complied with is a mere subterfuge. The accounts, etc., in such a case are of equal importance to each party, and the plaintiff would not be expected to surrender them to a stranger; or to formally tender them at an empty house or in the nighttime as that would be a meaningless proceeding. Such a construction of this contract cannot be considered a reasonable one.

As stated by the trial judge: “If the company desired to inspect these papers, they should have designated a particular time and place, and not having done so, the whole notice might properly be disregarded. We do not think Mr. Glenn would be expected to deliver up the possession of his papers to anyone or could be required to be in attendance at the office of Charles E. Smith during the whole of the month of February; this is not what is contemplated in the policy.”

A detailed schedule of the statement of the loss was served on the defendant on November 24, 1908, and no item contained therein is specifically challenged in the affidavit of défense which was filed on December 5, following. Prior to this, on August 22, the company was notified by the plaintiff, “I have always been ready to meet you at the office of Charles E. Smith for this or any other purpose, either you or your agents. I now notify you that I will meet you at the office of Charles E. Smith & Son, Franklin, Pa., on September 7, 1908 at 10 o’clock, and will then and there furnish you or your authorized agents so far as I can the matters, papers, etc., as per quotations requested.” This notice was ignored by the company, and as shown by the testimony of Strobel, the office of Smith was locked up all that day, and Strobel, while in Franklin that day, did not call on the plaintiff, though his office was but a few doors away, and the trial was not had until April 6, 1909.

When the facts are admitted or are clearly proved, what is a reasonable time is a question of law for the court depending upon the circumstances of the case, and under the rule of court all specifications of items and statements of facts necessary to support them contained in the plaintiff’s declaration or the statement of claim, and not specifically traversed or denied by the affidavit of defense, shall be taken as admitted. The court rightly held the affidavit to be evasive and not sufficiently specific in its denial to exclude the statement of claim from the consideration of the jury. This being the substantial question involved, the judgment is affirmed.

Porter, J., dissents.


text:
    Glenn v. Jefferson Fire Insurance Company, Appellant.
    October 10, 1910:
   Opinion by

Orlady, J.,

This case was tried before the same jury as Glenn, Trustee, v. Colonial Assurance Company, ante, p. 208, in which appeal an opinion is filed this day. The record in this case is a duplicate of that one, and for the reasons given this judgment is affirmed.


text:
    McGovern v. Cosmopolitan Savings & Loan Association, Appellant.

      Building and loan associations — Withdrawing stockholder — Bight to sue — Judgment—Stay of execution — Acts of April 12, 1859, sec. 2, P. L. 544, and April 29, 1874, clas. 2, sec. 87, P. L. 78.

    A withdrawing stockholder of a building and loan association whose notice has been filed, but not otherwise acted upon by the association, and whose turn has not been reached for payment in the regular order of application for the same, has the right to sue the association and obtain judgment for the undisputed amount of his claim, subject to the power of the court to restrain execution until his turn should be reached. United States Building & Loan Assn. v. Silverman, 85 Pa. 394, and Lepore v. Twin Cities National B. & L. Assn., 5 Pa. Superior Ct. 276, followed.

      October 10, 1910:
    Argued April 13, 1910.
    Appeal, No. 15, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny County, First T., 1909, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louisa McGovern v. Cosmopolitan Savings & Loan Assn.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit by a withdrawing stockholder of a building and loan association. Before Cohen, J.
    The facts are stated in the opinion of the Superior Court.
    • Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      T, 8. Brown, of Brown & Stewart, for appellant.
    The rule in the Silverman case was abrogated, as to all building and loan associations incorporated under the act of 1874, by the Act of assembly of April 10, 1879, P. L. 16, 1 Purd. Dig. (13th ed.), 551, par. 15.

      Sidney J. Watts, for appellee.
   Opinion by

Rice, P. J.,

The question involved in this case is whether the plaintiff, a withdrawing stockholder whose notice had been filed but not otherwise acted upon by the association and whose turn had not been reached for payment in the regular order of application for the same, had the right to sue the association and obtain judgment for the undisputed amount of his claim, subject to the power of the court to restrain execution until his turn should be reached. Section 2 of the Act of April 12, 1859, P. L. 544, relative to building and loan associations, provided that any stockholder wishing to withdraw could do so by giving thirty days’ notice of his intention, when he should be entitled to receive the amount paid in by him and such, proportion of the profits as the by-laws may determine, less all fines and other charges. But the section contained a proviso that at no time should more than one-half of the funds in the treasury of the corporation be applicable to the demands of withdrawing stockholders, without the consent of the board of directors. Clause 2 of sec. 37 of the corporation Act of April 29, 1874, P. L. 73, contains a literal copy of the clause and proviso of the act of 1859, above referred to, except that it makes no mention of the right of the withdrawing stockholder to a part of the profits, but provides that after the expiration of one year after the issuing of the series he should be entitled to legal interest on the amount paid in by him. This difference between the two acts does not affect the question before us and need not be alluded to further. In an action brought in 1876 by a withdrawing stockholder of a building and loan association incorporated under the act of 1859, it was averred as a defense that one-half of the money in the treasury had been applied and paid to withdrawing stockholders in the order in which they gave notice and plaintiff had not been reached; and it appears to have been argued there, as it is here, that the action, if an action at law was maintainable at all, was prematurely brought. Upon writ of error to the judgment in plaintiff’s favor for the full amount of his claim the Supreme Court fully considered the clause of the act of 1859 above referred to, and particularly the proviso, and held that after thirty days’ notice the membership of the stockholder is determined and he becomes a creditor of the corporation to the amount he has paid, less fines and charges, and may, upon the refusal of the' company to pay him, sue it and recover judgment. The interpretation of the proviso that would postpone his right to sue and recover judgment until one-half the money in the treasury should be sufficient to meet his claim and those of withdrawing stockholders who had previously given notice, was rejected. We quote the language of the court’s opinion upon this subject. “It is a fact now alleged that this company has no money to apply to the claim in suit. When will it have? in one, six or ten years, or ever? And will the statute of limitations be suspended in the meantime? To these questions the defendant but answers: the proviso interposes to prevent the plaintiff from all compulsory process, though his claim is recognized, in the body of the statute, as just and proper, as long as the corporation manages to maintain an empty treasury, or, what is the same thing, as long as prior drafts leave no money to be applied to his debt. Looking at the statute as a whole, we are not prepared to adopt an interpretation so contrary to its spirit and the plain dictates of justice. Whilst it is certainly intended that the operations of the corporation shall not be embarrassed by having the whole amount of its cash assets taken, in order at once to pay withdrawing stockholders, yet it as certainly does not intend that no provision shall be made for their payment, and that they may be indefinitely postponed, even from judgment, by a plea of quasi insolvency. We think the design of the act can be better met by giving the plaintiff judgment, and then, should it seem equitable to the court below, it may restrain execution, in order that the defendant may have a reasonable time within which to raise the money for the payment of such judgment, so that there may be no undue derangement of its affairs:” U. S. Building & Loan Assn, v. Silverman, 85 Pa. 394. The doctrine of that case was followed by the Superior Court in Lepore v. Twin Cities National Building & Loan Assn., 5 Pa. Superior Ct. 276, decided in 1897, and, unless the latter decision be overruled, the judgment entered in the present case must be affirmed. The proposition for which these cases stand is, that a withdrawing stockholder may sue and recover judgment for the undisputed amount of his claim, subject to the power of the court to control’execution thereon so as to carry into, effect- the proviso that at no time shall more than one-half of the funds in the treasury be applicable to the demands of withdrawing stockholders, without the consent of the board of directors. It is argued that, whether this was or was not a correct view of the law prior to the Act of April 10, 1879, P. L. 16, it is not so now, and that the purpose and effect of sec. 2 of that act were to set aside the ruling in the Silverman case and postpone the right to sue until the funds applicable to the demands of withdrawing stockholders are sufficient to meet the plaintiff’s claim in the order in which it was made. In view of this argument it will be well to quote the entire section in this immediate connection, and we remark that the by-law of the defendant association does not lay down a different rule. The section reads: “Stockholders withdrawing voluntarily, shall receive such proportion of the profits of the association, or such rate of. interest as may be prescribed by the by-laws, any law or usage to the contrary notwithstanding, but payment of the value of stock so withdrawn, shall only be- due when the funds now by law applicable to the demand of withdrawing stockholders are sufficient to meet and liquidate the same, and then only in the order of the respective times of presentation of the notices of such withdrawal, which must have been presented in writing at a previous stated meeting, and have then and there been indorsed as to times of presentation, by the officer designated by the by-laws of the association.” It is to be borne in mind that this section does not stand alone, but is one of ten sections which constitute a partial revision of the law. It does not declare that the right to sue shall be postponed, but only that payment shall not be due, etc. Virtually, this was what had been decided in the Silverman case; the withdrawing stockholder might sue and have the amount of his claim liquidated by judgment, but, if by reason of there being insufficient funds to satisfy his claim as well as those of stockholders who had previously given notice of withdrawal, the court could restrain execution. In effect, the case recognized the right to sue and recover judgment in this particular class of cases, although payment could not be enforced at the time of suit brought or judgment entered; in other words, was not due. Thus viewing the decision in the Silverman case, it is not clear from the language of the act of 1879 that the legislature intended to overturn it; a reasonable hypothesis is that the intention was to reaffirm it and embody the principle there decided in the revision of the statute law that was then being made. The case of Lepore v. Twin Cities National Building & Loan Assn, is directly in point. It was decided several years after the passage of the act of 1879 and in full view of its provisions. The decision has stood for more than a dozen years, and without question so far as is shown by the reported cases of which we are aware. A fair regard for the stability and certainty of the law requires that it be adhered to, unless very clearly shown to be erroneous in principle or in conflict with decisions of the court of last resort upon the same point. The able argument of appellant’s counsel has not convinced us that it can be overturned upon either of these grounds. On the contrary, our conclusion is, after a full reconsideration of the question, that it is in accordance with the principle enunciated in the Silverman case, and that the authority of that case, so far as the precise point under consideration is concerned, was not affected by the act of 1879. A very strenuous argument is made upon the supposed inconvenience of permitting the claim of a withdrawing stockholder to be liquidated in judgment before the funds available to satisfy it are in the treasury. We appreciate the force of what the learned counsel for the appellant say upon this subject; but it must also be conceded, for the reasons suggested in Judge Gordon’s opinion in the Silverman case, that the argument, ab inconvenienti, is not all on one side. But, be that as it may, it is a question rather for the legislature than for us. If the practice be so inconvenient as is argued, the legislature may easily correct it.

The judgment is affirmed.


author: Per Curiam,

text:
    Commonwealth v. Johnston, Appellant
    October 10, 1910:
    (No. 1).

      Appeals — Assignments of error — Exception to instructions — Quashing appeal.

    An appeal will be quashed where the record fails to show that any exceptions were taken to answers to points or to portions of the charge assigned as error.
    Argued April 15, 1910.
    Appeal, No. 50, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1909, No. 172, on verdict of guilty in case of Commonwealth v. F. Johnston et al.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Appealed quashed.
    Indictment for conspiracy.
    At the trial the jury returned a verdict of guilty on which judgment of sentence was passed.

      Errors assigned were (1, 2) refusal of two points presented by the defendant and (3) portion of charge, quoting it.

      E. W. 'Arthur, with him John S. Robb, Jr., and W. S. Thomas, for appellant.

      Harry H. Rowand, assistant district attorney, with him William A. Blakeley, district attorney, for appellee.
   Per Curiam,

The first assignment of error is to the refusal of the defendants’ point that under all the evidence the verdict must be in their favor; the second to the answer to a point that if the jury found certain facts the defendants could not be convicted of criminal conspiracy; and the third to certain instructions given in the general charge. They all involve questions arising upon the evidence, and, therefore, in the absence of exception before verdict, the answers and instructions are not subject to review on appeal: Curtis v. Winston, 186 Pa. 492; Sibley v. Robertson, 212 Pa. 24; Guemple v. Philadelphia Rapid Transit Co., 224 Pa. 327; Petri v. Carracciolo, 33 Pa. Superior Ct. 312. The record fails to show anywhere that an exception was taken either to the charge or the answers to the .points, and of course we must be guided by the record. It follows that the judgment should be affirmed or the appeal quashed. Following the precedent in Curtis v. Winston, we adopt the latter course.

The appeal is quashed.


text:
    Commonwealth v. Johnston, Appellant
    October 10, 1910:
    (No. 2).
   Per Curiam,

For the reasons given in the immediately preceding case the appeal is quashed.


text:
    Bialas v. Elder, Appellant.

      Deed — Description of property — Parol evidence — Question for fury.

    Where a written agreement for the sale of land provides that there should go with the property “the barn frame lumber cut and sawed now on the farm,” and there is nothing in the writing to show what was the meaning of the words barn frame lumber, and the evidence does not show that they had any trade meaning, parol evidence is admissible to show the condition of things on the ground at the time and the character and quantity of the lumber on the farm, and if the evidence is conflicting, it is for the jury to determine what the parties meant by the use of these words.
    Argued April 21, 1910.
    Appeal, No. 90, April T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny County, June T., 1905, No. 369, on verdict for plaintiff in case of R. F. Bialas and Magdalena, his wife, v. John H. Elder.
    October 10, 1910:
    Before Rice, P. J., Henderson, Morrison, Or-lad y, Head, and Beaver JJ.
    Affirmed.
    Trespass for the taking away of lumber. Before Ford, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,500 on which judgment was entered for $991.97, all above that amount having been remitted. Defendant appealed.

      Errors assigned were (1-15) various instructions and rulings on evidence.

      C. C. Dickey, with him W. K. Shiras, for appellant.

      James Balph, with him R. A. Balph, for appellees.
   Opinion by

Head, J.,

The plaintiff had entered into a written agreement with one William Langlcamp and his wife for the purchase of a tract of land in Beaver county. So far as the land itself is concerned the transaction was promptly and satisfactorily completed. It appears, however, that certain personal property was also the subject of their negotiations. The written agreement contained the following provision: “It is further agreed that all crops that are growing and sowed on said farm shall go with the property, also the barn frame lumber cut and sawed now on the farm, all posts to go with the property.” The contention between the parties arises from their different constructions of the above-quoted provision.

The negotiations leading up to the sale had been conducted for the owners by their son-in-law and agent, the present defendant. Shortly before the agreement was executed he had taken the plaintiff who resided in Pitts-burg to see the property. At that time there was a considerable amount of cut and sawed lumber on the premises, a sawmill having been operated thereon for some time. As to what occurred during this inspection of the property and what was said by the parties the testimony is conflicting. Shortly after their return the article of agreement was drawn up by the defendant and duly executed by the parties.

It is clear enough that the intention was that the purchaser should acquire title to certain lumber, and the language of the agreement must have been designed to describe with more or less accuracy the lumber he was to get. The language, as we have seen, was the language of the defendant. It will be observed at once that the lumber, which was the subject-matter of the provision, was lumber “now on said farm.” There was thus practically written into the agreement the local conditions as they existed on the ground at the time it was executed. To determine the dispute which later arose between the parties it therefore became necessary to reproduce for the court and jury those conditions by the aid of parol testimony. In no other way could the condition of things on the ground, or in other words, the character and quantity of the lumber “now on said farm,” become cognizable by the tribunal that was to try the cause. The introduction of parol testimony in such a case is no violation of the general rule that the construction of written instruments is the function of the court. As long as the true meaning of such writings can be reached ex visceribus suis, it is doubtless the duty of the trial judge to construe them. But when it becomes necessary to apply the language of a written instrument to its subject-matter, or when things or conditions not within the legal perspective of a trial judge are written into the agreement, the introduction of parol testimony becomes a matter of necessity, and the propriety of receiving it has always been conceded by courts and text-writers.

What is “barn frame lumber”? The learned judge below properly determined that the first important inquiry should naturally be whether or not that was a trade term in the lumber business, having a fixed and definite meaning, so that it could be used with accuracy to describe a particular kind of lumber only and no other. Testimony was accordingly offered on both sides, the defendant contending that it had such particular meaning, the plaintiff the contrary. As the case was submitted the jury has found that there is no such term known to the trade.

If then the expression used in the agreement is not a technical or trade term, it is to be understood according to the interpretation put upon the words in the average speech of the people. It must be apparent, we think, that the important word in this expression is the word “frame.” Frame lumber is, of course, such as is ordinarily used in constructing the framework of a building, and it would be hard to see how barn frame lumber could well mean anything else than lumber suitable for constructing the framework of a bam. Ordinarily this might be supposed to be somewhat larger and heavier than that used for a house, stable or other building of smaller dimensions. The learned trial judge therefore left to the jury, under the evidence, the determination of what barn frame lumber there was on the premises at the time the agreement was made. In such submission we can see no error, as we are unable to perceive how the learned trial judge could have determined as a matter of law what was barn frame lumber and what was not. The entire question was one of fact to be decided in accordance with the preponderance of the evidence in the case.

The theory of the defendant was that it was the intention of the owner to erect a new bam on the premises sold and that frame lumber specially designed for that purpose had been sawed and put upon a certain pile which was pointed out to the purchaser at the time of his visit; and that this pile of lumber, and this alone (leaving out the question of posts), was what the plaintiff was to get. Such may indeed have been the fact, and had the jury been willing to credit the'testimony of the defendant they would have found accordingly.

The plaintiff, however, stoutly insisted that the various piles scattered about the premises were all brought to his view; that they were made up indiscriminately of various kinds of lumber; a number of them, if not all of them, containing lumber quite as well suited for barn framing as that in any other pile. The defendant himself admitted on the witness stand that out of the pile of lumber, which he contended was the only subject of the agreement, there had already been built one barn, part of another one, and that there was still lumber enough to build a third. To what extent, if at all, this discredited his other statement that that pile of lumber had been gotten out specifically for the purpose of building a barn, we cannot say. A number of witnesses testified that much of the lumber which was subsequently removed by the defendant was entirely suitable for barn building, and the jury evidently accepted that testimony.

The entire contention, as we view it, was one of fact. The theory upon which the case was tried by the learned judge below was the correct one, and the several matters of fact which would aid the jury in reaching a proper conclusion were fairly submitted in a charge which we think fully vindicates itself. We are therefore unable to sustain the assignments of error which complain of portions of the charge and of the. refusal of the learned judge to take the case from the jury.

The defendant’s third point was as follows: “The expression 'barn frame lumber cut and sawed’ does not mean any lumber that would be suitable for a barn "frame, but refers to a particular pile, mass or quantity of lumber which prior to the date of the contract had been cut and sawed.” This point was refused and properly so. How could the learned trial judge undertake to say, as a matter of law, that the “barn frame lumber cut and sawed and now on said farm ” was in a particular pile? Of course the expression of the contract referred to a certain quantity of lumber on the farm, but whe'ther it was in one mass or pile or in several was a question to be determined by the jury under all the evidence in the case.

So in the fourth point the court was asked to say, “If the jury find .... that there was on the farm a pile of lumber cut and sawed for the frame of a barn, then the expression barn frame lumber, etc., referred to such a pile of lumber and not to any other lumber,” etc. This again we say, as the evidence stood at the close of the trial, was properly refused. It is extremely doubtful, even under the defendant’s own testimony, whether the pile of lumber to which he referred contained only lumber sawed for the frame of a particular barn. Such a conclusion was strongly assailed by his other admission to which we have referred. Moreover, even if there was in one pile lumber cut and sawed for the frame of a barn, there may have been like lumber in other piles, and there was no language in the agreement which would have warranted the trial judge, under such circumstances, restricting its effect to a single pile of lumber.

But all of these considerations only lead to the conclusion that the entire contention between the parties was one of fact to be disposed of by the jury under proper instructions, and in those given we are unable to find any reversible error. It may be that the jury accepted testimony which they should have rejected and declined to credit that which should have produced conviction, but if the defendant has suffered from this cause we have no remedy for his injury. The assignments of error are all dismissed.

Judgment affirmed.