text:
    Commonwealth v. Rider, Appellant.

      Criminal law — Assault and battery — Automobile—Turnpike.
    In the trial of an indictment for assault and battery a verdict of guilty will be sustained where the evidence for the commonwealth submitted to the jury, although contradicted, tended to show that the defendants in driving an automobile approached a toll gate, and when toll was demanded of them, choked the keeper, rushed their machine against and through the gate which the keeper’s wife was holding, and severely injured the latter, and that they had previously driven through a number of toll gates at a high rate of speed without paying toll.
    In such a case a demand by the keeper for a higher rate of toll than was legal, did not justify the assault.

      Criminal law — Instructions—Doubt—Reasonable doubt.

    In a criminal case when a reasonable doubt, within the meaning of the law and under the evidence, exists, it is the property of the defendant, and must result in an acquittal.
    The discretion of the jury is to be exercised in determining whether the reasonable doubt exists; if they find that such doubt does exist, then, the legal principle applicable is that they must give the defendant the benefit of the doubt; not that they may do so in their discretion.
    On a criminal trial the only instruction given by the court on the subject of doubt was as follows: “If you have any doubt of the guilt of the defendants, or either of them, on the indictments, under the testimony and the law in the case, you may give the defendants, or the one who is entitled to that benefit, the benefit of the doubt.” Held, to be insufficient and misleading.
    Argued Nov. 13,1905.
    Appeals, Nos. 112 and 113, Oct. T., 1905, by defendant, from judgment of Q. S. Lancaster Co., Nov. T., 1904, Nos. 30 and 40, on verdict of guilty in case of Commonwealth v. Jacob D. Rider and W. H. Ruffhead. Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ. Reversed.
    ' Indictment for assault and battery. Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.
    Defendants presented these points :
    1. Under the evidence there can be no conviction of the defendants for aggravated assault and battery. Answer: This point we refuse. [1]
    2. If the jury believe that the prosecutor, Roland Greiner, was attempting, at the time of the occurrence of the acts complained of, to collect an illegal and exorbitant amount of toll, the defendants had the right to pash their way through the gates, after offering to pay the legal and proper amount, using no more force than was necessary under the circumstances. Answer: That point we affirm, as we have explained to you in our general charge. There is no evidence, however, that there was an illegal or exorbitant amount of toll demanded. The defendants say, I think, forty-six cents, you will remember the amount that was demanded. There is no evidence that that was an illegal or exorbitant amount. But, as I have said to you, if he was demanding more than the company was entitled to, the defendants had their right, but their right was not to commit either of the offenses charged in this indictment. I affirm the point, if you find that illegal and exorbitant toll was demanded, but I say to you that the evidence does not show that any such toll was demanded from these defendants. [2]
    Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.

      Errors assigned were (1, 2) above instructions, quoting them; and (6) portion of charge as to doubt quoted in the opinion of the Superior Court.

      John A. Coyle, of Coyle $ Keller, for appellants.
    In a criminal prosecution for assault and battery the intent is all important : Butler v. Stockdale, 19 Pa. Superior Ct. 98.
    Nowhere in the charge, nor in the answer to the defendants’ points, did the court say that if Greiner was demanding exorbitant toll, they had the right to go through the gate, using no more force than was necessary so to do. That was the defense and the jury had a right so to be instructed upon it.
    The jury should have been told that if they had any reasonable doubt of the guilt of the defendants, that the defendants were entitled to the benefit of it and, therefore, must receive it and not that the jury might or might not give the doubt, which they had, under the law and the testimony, to the defendants.
    If, when the whole of the charge is considered, it has a tendency to mislead, though no particular portion of it be clearly erroneous, it is a cause for reversal: Pierson v. Duncan, 162 Pa. 187; Renn v. Tallman, 25 Pa. Superior Ct. 503; Penna. Canal Co. v. Harris, 101 Pa. 80; Brown v. Montgomery, 21 Pa. Superior Ct. 262.

      W U. Hensel, with him J. W. Brown, district attorney and E. P. Brinton, for appellee.
    The charge was proper and adequate : Horton v. Chevington & Bunn Coal Co., 2 Penny. 25; McClain v. Com., 110 Pa. 263 ; McMeen v. Com., 114 Pa. 300; Com. v. Orr, 138 Pa. 276; Phila. v. Monument Cemetery Co., 147 Pa. 170 ; Jackson v. Pittsburg Times, 152 Pa. 406; Com. v. Eckerd, 174 Pa. 137.
    Trivial criticisms of the language of the charge, or the “stereotyped complaints that the charge gave too much prominence to the evidence of the commonwealth, and not enough to that on behalf of the prisoner,” have no merit: Com. v. Razmus, 210 Pa. 609 ; Com. v. Devine, 14 Pa. Dist. Rep. 1; Com. v. Dingman, 26 Pa. Superior Ct. 615.
    December 11, 1905 :
   Opinion by

Porter, J.,

The defendants were jointly tried in the court below, and their appeals have here been argued together, under the same specifications of error. The first count of the indictment charged the defendants with assault and battery; the second count charged them with unlawfully and maliciously inflicting upon the person of Elizabeth Greiner grievous bodily harm. The defendants were acquitted upon the second count, and it is not necessary to consider the specifications of error which refer exclusively to that charge.

The first specification of error refers to the refusal of the court to give binding instructions in favor of the defendants.

The testimony produced by the commonwealth, if believed, established that the defendants were driving an automobile along a turnpike road and had already, in the afternoon, run through a tollgate without paying toll; they again approached the same gate in the evening and found it closed and the toll-keeper standing in front of it with a lantern, he demanded the toll for one way, ten cents ; the defendants refused to pay it'; one of them jumped out of the automobile, choked the gatekeeper, forced the gate partly open; at the call of the gatekeeper his wife came to his assistance, and thereupon the other defendant, calling to his companion to look out, ran the automobile against the gate which the wife was holding, and forced it and her against the side of the tollhouse, breaking two of her ribs and otherwise injuring her. ■ The defendants had in their testimony admitted that they had that afternoon run this particular gate and a number of others on the same turnpike at a speed of about sixteen miles an hour, without paying toll at any of the gates, and that this was the first gate at which they had been stopped. They testified that the toll-keeper demanded from forty-two to forty-eight cents toll, that that amount was exorbitant and that they tendered him the. amount of toll to which he was entitled, which he refused to receive, or permit them to pass; that one of the defendants stepped from the automobile and forced the gate open while the toll-keeper was trying to hold it shut, and that having succeeded in getting the gate open he called to his companion to come on, and that the automobile was then run through the opening slowly, without injury to any one. There was a direct conflict of testimony, and it was proper for the jury, in passing upon the credit to which the witnesses were entitled and the purpose and intention of the defendants in forcing their way through the gate, to consider the fact that these same defendants had upon that same turnpike immediately before this incident, rushed a number of tollgates at a high rate of speed, without paying toll. The case was for the jury, and the first specification of error is dismissed.

Even if the toll-keeper demanded more toll than was actually due, that'did not warrant the defendants in committing a breach of the peace in order to force a passage. The preservation of the public peace is paramount to the mere equitable regulation of the tolls to be charged by a turnpike company. When a gate-keeper demands more than the lawful toll, this does not confer upon the traveler the right to choke him and break the ribs of his wife. The second specification of error is dismissed.

The third specification of error refers only to the second count of the indictment, upon which count the defendants were acquitted and cannot again be tried, and its consideration is unnecessary. The court fell into trifling inaccuracies in referring to the testimony, but the slips were not of a serious nature and were subsequently corrected, and it is not necessary to discuss the fourth and fifth specifications of error.

The sixth specification is to the following language found in the charge: “ If you have any doubt of the guilt of the defendants, or either of them, on the indictments, under the testimony and the law in the case, you may give the defendants, or the one who is entitled to that benefit, the benefit of that doubt.” This sentence embodies all that was said by the learned judge to the jury upon the subject to which it refers. That it was inadequate in failing to define the nature of the doubt which should have an effect upon the verdict, is manifest. A doubt, to work an acquittal, must be serious and substantial, not the mere possibility of a doubt. If the evidence convince of guilt beyond a reasonable doubt, a jury is bound to convict: Commonwealth v. Harman, 4 Pa. 269. This reasonable doubt arises from the failure of the evidence to convince the minds of the jury of the guilt of the defendant: McMeen v. Commonwealth, 114 Pa. 300. This mere inadequacy did not, however, prejudice the cause of the defendants, for the jury might have assumed that they were at liberty to acquit because of the existence of some imaginary doubt. The complaint of the de- ' fendanfcs is'that the instruction was misleading as to the effect which must be given to a doubt, and this complaint seems to be well founded. When a reasonable doubt, within the meaning of the law and under the evidence, exists it is the property of the defendant, and must result in an acquittal. This principle is too well recognized and important to be ignored. An instruction which must reasonably be held' to have given a jury the impression that if they found that such a doubt as the law recognizes existed, under the evidence, then they were vested with a discretion to determine whether the defendant should have the benefit of that actually existing reasonable doubt, is certainly misleading. The discretion of the jury is to be exercised in determining whether the reasonable doubt exists, if they find that such doubt does exist, then, the legal principle applicable is that they must give the defendant the benefit of the doubt; not that they may do so in their discretion. The sixth specification of error is sustained.

It is ordered that in each of the appeals Nos. 112 and 113, October Term, 1905, the judgment be reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Sword v. Reformed Congregation Keneseth Israel, Appellant.

      Contract — Ratification—Corporation—President.
    Ratification of a contract implies knowledge of the material facts, and to be effective must be made by persons having the power to perform the act which is the subject of -ratification. In the absence of evidence that the facts were communicated to the party, or that he 'had knowledge of them and assented to the acts alleged to have been done for him, the question of ratification should not be submitted to the jury.
    Ratification may be shown by proof of facts from which it may be lawfully presumed, but the facts must be such as are inconsistent with another hypothesis than that the person whose ratification is sought to be established approved and intended to adopt what had been done in his name. The question ought not to be submitted for the determination of the jury upon evidence which does not logically lead to the conclusion sought to be established.

      In an action against a religious corporation to recover the price of a portrait alleged to have been sold to the president of the corporation, it appeared that the president had no authority under the constitution and by-laws to purchase such a picture. The evidence showed that after the portrait was painted, it was hung for exhibition in the synagogue of the defendant. It was taken away for a time but subsequently returned. The portrait was hung in the synagogue for the accommodation of the plaintiff, and it was not until about a year after it had been placed there that the alleged sale was made. Soon after the alleged sale the president died. Plaintiff testified that he had had a conversation with the succeeding president with reference to the portrait, in which the latter said that he knew all about the' arrangements that had been made, and that he knew that the portrait was hanging in the synagogue. Held, that the evidence was insufficient to submit to the jury, to determine whether there had been any ratification of a contract for the purchase of the portrait.
    Argued Oct. 10, 1906.
    Appeal, No. 142, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 2537, on verdict for plaintiff in case of James B. Sword v. Reformed Congregation Keneseth Israel.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit to recover the price of a painting. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for 1502.25. Defendant appealed.

      Error assigned among others was (5) refusal of binding instructions.

      Harry E. Kohn, for appellant.
    A ratification to be efficacious, must be made by a party who had power to do the act in the first place : Market Co. v. Jackson, 102 Pa. 269 ; Zoebisch v. Rauch, 133 Pa. 532; Moore v. Patterson, 28 Pa. 505; Copeland v. Tannery Co., 142 Pa. 446 ; Wheeler v. Sleigh Co., 39 Fed. Repr. 347; Hood v. Hood, 2 Grant, 229.
    The ease of Allegheny County Workhouse v. Moore, 95 Pa. 408, not only governs the ease at bar, but goes lengths further than this court is now asked to go. To the same effect are the following cases, and many others which it would be superfluous to cite: Railway Co. v. Christian, 124 Pa. 114; Giberson v. Mills Co., 174 Pa. 369 ; Stoystown, etc., Turnpike Road Co. v. Craver, 45 Pa. 386 ; Railroad Co. v. Books, 57 Pa. 339; Railroad Co. v. Plank Road Co., 71 Pa. 350 ; Bank v. McKee, 2 Pa. 318; Investment Co. v. Eldridge, 175 Pa. 287 ; Weldon v. Traction Co., 27 Pa. Superior Ct. 257.

      H. K. Fries, for appellee.
    Appellant contends that there must be actual knowledge of the agent’s act shown in order to render ratification efficacious.
    It is submitted that in this case knowledge was brought home to the defendant corporation.
    First, by the delivery of the portrait, which fact spoke for itself, and of which the corporation and its officers could hot have been ignorant; and, in fact, they testified that it was there. Second, notice of the sale was explicitly given to the succeeding president: Steamboat Co. v. McCutcheon, 13 Pa. 13; Com. v. R. R. Co., 2 Phila. 250; Dallas v. Columbia Iron & Steel Co., 158 Pa. 444; Goldbeck v. Bank, 147 Pa. 267; Wagner v. Peterson, 83 Pa. 238; Bergner v. Thompson, 74 Pa. 168; Watson v. Lukins, 126 Pa. 630; Ritchie Co. v. Albion Mfg. Co., 173 Pa. 447 ; Imbrie v. Ins. Co., 178 Pa. 6 ; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Harrisburg Bank v. Tyler, 3 W. & S. 373; Millward-Cliff Cracker Co.’s Est., 161 Pa. 157 ; First Nat. Bank v. Peisert, 2 Penny. 277 ; Oil Creek, etc., R. R. Co. v. Pa. Trans. Co., 83 Pa. 160; Boyd v. American Carbon Black Co., 182 Pa. 206; Manhattan Hardware Co. v. Phalen, 128 Pa. 110; Market Co. v. Jackson, 102 Pa. 269; Zoebisch v. Rauch, 133 Pa. 532; Moore v. Patterson, 28 Pa. 505; Supervisors v. Schenck, 72 U. S. 772; Wheeler v. Sleigh Co., 30 Fed. Repr. 347.
    December 11,1905:
   Opinion bt

Henderson, J.,

The defendant is a religious corporation. The plaintiff’s claim is for a portrait alleged to have been bought by its president. The constitution and by-laws of the corporation provide that “ the Board of Trustees shall have the entire charge, management and control of the Congregation’s affairs and property. . . . They shall have power to make all necessary repairs and purchases provided the cost of the same do not, in any one case, exceed |250.” The president is empowered to préside at all meetings of the congregation and of the board óf trustees ; to sign all orders drawn on the treasurer duly authorized by the board; to have charge of all title deeds, books, papers, etc., not intrusted to other officers; to appoint all committees not otherwise constituted; to be, ex officio, á member of such committees, but without the right to vote; he is prohibited from voting at meetings of the congregation or the board of trustees except at elections for officers or in a case of a tie at meetings where he is presiding. The court instructed the jury that the president of a religious corporation has no authority to bind the corporation except for the usual purposes of the church; that the purchase of portraits was not within the scope of his authority; and that if the president made the contract without any authority of the board of trustees, and they never knew he made it and never ratified it and never accepted it, the plaintiff would not be entitled to recover. No authority in the president to bind the corporation was shown and the case was submitted to the jury on the question of ratification.

The defendant’s second point (fifth assignment) requested the court to give binding instructions for the defendant under all the evidence. ■ The question for our consideration under this assignment is whether there is any evidence of ratification. The plaintiff alleged that the portrait was sold in January, 1898, to Mr. Lewin, then president of the defendant corporation. Mr. Lewin died soon after and Mr. Mertz was elected president. The facts relied on to establish a ratification of Mr. Lewin’s act are that after Mr. Mertz became president, the plaintiff had a conversation with him with reference to the purchase of the portrait and payment therefor in which Mr. Mertz said that he knew all about the arrangements that were made, and the further fact that the portrait was hung in a reception room in the synagogue of the defendant. It appeared from the evidence that after the portrait was painted it was hung there for exhibition from the spring of 1896 until the spring of 189T, or about that time, by the artist and owner and for his accommodation. It was afterwards taken to Nashville, Tennessee, to be exhibited, and returned to the plaintiff who again hung it in the same place in the synagogue where it had theretofore been. The return of the portrait to the synagogue, as claimed by the plaintiff, was in pursuance of the contract with Mr. Lewin. The only competent evidence of ratification seems to have been the presence of the portrait in the synagogue after its return from Tennessee. In view of the admitted fact, however, that it had been in the same place for about a year not long before the time of the alleged sale, without any contract or agreement for its purchase and without any obligation on the part of the defendant with reference thereto, we are unable to see how knowledge of a contract of purchase can be imputed to the congregation from the mere fact of the presence of the portrait. Ratification implies knowledge of the material facts, and to be effective must be made by persons having the power to perform the act which is the subject of ratification. In the absence of evidence that the facts were communicated to the party, or that he had knowledge of them and assented to the acts alleged to have been done for him, the question of ratification should not be submitted to the jury: Market Company v. Jackson, 102 Pa. 269; Moore v. Patterson, 28 Pa. 505; Copeland v. Tannery Co., 142 Pa. 446; Zoebisch v. Rauch, 133 Pa. 532; Western National Bank v. Armstrong, 152 U. S. 346 (14 Sup. Ct. Repr. 572). Ratification, it is true, may be shown by proof of facts from which it may be lawfully presumed, but the facts must be such as are inconsistent with another hypothesis than that the person whose ratification is sought to be established approved and intended to adopt what had been done in his name : Supervisors v. Schenck, 72 U. S. 772. The question ought not to be submitted for the determination of a jury upon evidence which does not logically lead to the conclusion sought to be established. Having in mind the fact that the portrait was kept by the owner for a long time in the same place in which it was hung after the alleged sale, it is apparent that no inference from the presence of the portrait prejudicial to the defendant could arise after the sale which was not applicable when the portrait was there for the accommodation of the owner. That the portrait was taken away for a time and' then returned is not a fact from which alone ratification should be inferred.

The evidence of Mr. Mertz does not strengthen the plaintiff’s case. The powers of the president of the defendant corporation are restricted, as shown by the by-laws, and admissions made by him not in the discharge of his official duties are not competent to bind the corporation. The board of directors is invested with authority to manage the financial affairs of the corporation, to enter into contracts and to bind it to the extent authorized by the by-laws. No assertion of knowledge by the succeeding president can be given an effect prejudicial to the rights of the defendant. Corporate rights are not to be frittered away by loose and unauthorized declarations made by persons who at the time had no authority to bind the corporation : Allegheny County Workhouse v. Moore, 95 Pa. 408; Investment Co. v. Eldridge, 175 Pa. 287.

After a careful examination, we are of opinion that the plaintiff has not presented evidence from which the jury is warranted in finding a ratification of the alleged contract of the president of the defendant corporation. The fifth assignment is sustained and the judgment reversed.


author: Hendebson, J.,

text:
    Pickup, Appellant, v. Philadelphia & Reading Railway Company.

      Railroads — Use of streets — Construction of watch-box on sidewalk — Municipal consent — Injunction-
    A railroad company cannot be enjoined by a property owner from constructing a watch-box partly upon the owner’s sidewalk, where it appears that the company has the consent of the city for such construction, that the watch-box is to be used in connection with a safety gate and is of proper construction, and that the erection of the box wholly within the street would interfere with the use of the driveway, and as constructed on the sidewalk would leave ample room for the passage of pedestrians.
    Argued Oct. 13, 1905.
    Appeal, No. 121, Oct. T., 1905, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1903, No. 4176, dismissing bill in equity in case of Mary Hannah Pickup and Manayunk Trust Company, Trustees, v. Philadelphia & Reading Railway Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Davis, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      E. S. Cantrell, Jr., with him E. S. Cantrell, for appellant.—
    Plaintiff was entitled to the equitable relief which she sought: Jones v. R. R. Co., 169 Pa. 333; Bly v. White Deer Mountain Water Co., 197 Pa. 80; Wilson v. R. R. Co., 5 W. N. C. 185; Patent v. R. R. Co., 14 W. N. C. 545; Reimer’s App., 100 Pa. 182.

      John G. Lamb, for appellee.
    The flag-box in question is a mere part of the railroad. The railroad company could have constructed it without express power. But the power is certainly comprehended within the-grant to erect and establish “ works, edifices and devices to the said railroad.” And it could be constructed any time after the original building of the railroad : Cother v. Ry. Co., 2 Phillips, 469 ; Ridge Turnpike v. Stoever, 2 W, & S. 548; Phila., etc., R. R. Co. v. Williams, 54 Pa. 103 ; Cleveland, etc., R. R. Co. v. Speer, 56 Pa. 325; Black v. R. R. Co., 58 Pa. 249; Navigation Co. v. Northampton County, 8 W. & S. 334.
    The whole authority need not be exercised in the beginning when the demands of business are few. Railroad works may be enlarged as required: Yost v. Philadelphia & Reading Railroad Company, 29 Legal Int. 85.
    The right of the appellee to erect such watch-boxes bn this street was expressly decided by the Supreme Court in the ease of Wilson v. P. & R. R. R. Co., 5 W. N. C. 185.
    The resolution of councils directing the placing of safety gates at this crossing was within its authority as having charge of the regulation and control of the streets, subject to the paramount authority of the commonwealth: Southwark R. R. Co. v. Phila., 47 Pa. 314.
    December 11,1905 :
   Opinion by

Hendebson, J.,

The plaintiffs represent the owners of a lot at the corner of Crescent and Grape streets, in the city of Philadelphia. The defendant’s tracks are located on Crescent street in front of the plaintiffs’ property, and it is about to erect a safety gate and watch box upon and near the sidewalk in front of this property. To prevent this an injunction is sought. The defendant succeeded to the title and rights of the Philadelphia, Germantown and Norristown Railway Company, which was duly authorized by its charter and supplements to survey, mark and fix such route as the president and directors of the company should deem expedient for a railroad, not exceeding four rods wide, from the borough of Norristown to the city of Philadelphia; and also to make, erect and establish a double-track railroad on the route so laid out, and to erect, make and establish all such works, and devices on such railroad which might by said company be deemed expedient for the purpose of carrying into effect the object of its incorporation. This charter was approved February 17, 1881, and the tracks were laid pursuant to the authority thereby conferred. The city of Philadelphia adopted an ordinance requiring the defendant from October 21, 1902, to erect safety gates at Grape street on the line of the Philadelphia, Germantown and Norristown branch. It was in compliance with the direction of this ordinance that the erection of the structure was undertaken of which the plaintiffs complain. The safety gate adopted for this crossing is of an improved design, requiring the use of pneumatic machinery, and its construction involves the necessity for a watch box which in the present case is five feet wide, seven feet long and nine feet, seven inches high. The box incloses three feet, five inches of the sidewalk, the remainder being on the cartway. The sidewalk is ten feet wide in front of the plaintiffs’ property. There is also a small coal box included in the defendant’s plan.

It appears from the evidence that the gates can. only be worked from the watch box, that the latter is located at the most convenient and practicable place for securing its efficient use; and that the agents of the defendant have exercised care and discretion in its location. The plaintiffs’ complaint is not that it is erected on the street, but that it encroaches on the sidewalk. The defendant justifies its action under the powers granted in the charter and under the requirements of the ordinance of October, 1902. It is not contended by the appellants that the structure might not be lawfully placed in the cartway, and yet the sidewalk is as much a part of the public highway as that over which vehicles pass. The designation of a part of the street for the exclusive use of pedestrians is convenient for the public, but does not give a character to it as private property different from the remainder of the street; The right of the city to control the use of the streets in a reasonable way is undoubted, and the inconvenience to which an adjoining property owner may be subjected is incidental to this right. The special burden cast upon him must be borne in subordination to the public welfare. Many of the structures in use in cities in supplying municipal needs and meeting the demand for convenience in travel, interfere to a greater or less degree with the undisturbed enjoyment of property by the . owners. But in most cases, such injuries are a part of the debt which persons so situated owe to the public. The city having lawfully exacted of the defendant the erection of a safety gate at the point in question, and it appearing that the plan adopted is reasonable, we think the action of the defendant is not in excess of its power. The very question was decided in the case of Wilson v. Phila. & Reading Railroad Co., 5 W. N. C. 185, where the authority of the same company to erect a watch box on the same street was recognized. It is true in that case the box was wholly on the driveway, but as • already stated that is not a controlling factor so far as the rights of the plaintiff are concerned. Where it appears that ample room remains on the sidewalk for the passage of pedestrians and the removal of the box into the street would interfere with the use of the driveway, an injunction should not be granted.

The action of the court below is warranted by the facts presented.

The decree is affirmed.


text:
    Barley, Appellant, v. Beegle.

      Replevin — Wrongful taking of property.

    In an action against a plaintiff in replevin, a recovery may be had where it is shown that the plaintiff in the replevin received from the sheriff goods seized under the writ, and with full knowledge that the goods were not the goods of the defendant in the replevin, but that they were the goods of the claimant, sold them and converted the proceeds to his own use.

      Evidence — Conflicting evidence — Province of court and jury.

    In an action of assumpsit if the evidence is direct, certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inference of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses, and. if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up doubts, settle questions of credibility, draw correct inferences and give full shape to findings of fact. This rule is applicable in an action for the keep of horses.
    Argued Oct. 25, 1905.
    Appeal, No. 125, Oct. T., 1905, by plaintiff, from judgment of C. P. Bedford Co., Jan. T., 1908, No. 85, on verdict for plaintiff in case of Susan Barley, Jr., v. John H. Beegle.
    Before Rice P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for the keep of horses and to recover the value of certain articles of personal property taken by defendant. Before-Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John AT. Jordan, with him R. O. Eaderman, for appellant.—
    The case was for the jury: Eardley v. Keeling, 10 Pa. Superior Ct. 339; Dinan v. Supreme Council, 210 Pa. 456; Harlow v. Homestead Borough, 194 Pa. 57 ; Molloy v. U. S. Express. Co., 22 Pa. Superior Ct. 173 ; Barnett v. Becker, 25 Pa. Superior Ct. 22.

      Üv M. Pennell, with him E. O. McNamara., for appellee,
    cited: Hill v. Epley, 31 Pa. 331.
    December 11, 1905 :
   Opinion by

Henderson, J.,

The plaintiff declared for the value of certain articles of personal property taken by the defendant, and for compensation for keeping and caring for the defendant’s horses. The court gave binding instructions for the defendant. The plaintiff was held to be estopped from recovering her personal property by her silence at the time it was taken away, and was denied the right to recover for the keep of the horses because the defendant had no knowledge that they were kept at the expense of the plaintiff. It is made very clear by the plaintiff’s evidence that some of her property was taken from her farm by the sheriff on a writ of replevin to which she was not a party, and delivered to the plaintiff; that within a day or two thereafter, she notified the plaintiff that the property was hers ; that he promised to return it, and that, with the exception of a few small articles, he failed so to do. It further appeared that the defendant afterwards sold a part of the property so taken, and it seems to be conceded by the defendant’s counsel that it was all sold. The defendant had purchased some personal property belonging to Job Beegle at a sheriff’s sale, on the same farm from which the plaintiff’s property was taken, more than a year previous to the time the writ of replevin was issued. Some of the articles sold at the sheriff’s sale were the same in kind as those claimed by the plaintiff. The defendant permitted this property to remain on the farm under an alleged arrangement with the defendant in the execution, and his brother, Daniel. A dispute having arisen between them, the writ of replevin referred to was issued by the defendant. The plaintiff was living on the farm at the time this writ was executed, and was at the house when the goods were taken away. She denied that anything was said to her about taking the goods and that she was asked whether she had any claim on them. , She also alleged that nothing was said to her in regard to the property. Aihong the articles taken were an Oliver chilled plow, a single ■harness, two sets of work gears, two bridles, and a number of tools. The property was placed in wagons by the sheriff and his assistants. It does not appear that the plaintiff knew that the particular articles which she claimed were in any of the wagons, or that she knew her property rather than that which had been sold at the sheriff’s sale as the property of her brother, Job, was being taken away.

The testimony lacks that clearness from which the court could safely say that the plaintiff knew the articles for which she brought suit were in the wagons at the time the sheriff took away the property. If that were a material consideration, the question was one for the jury. As we understand the case, however, the doctrine of estoppel is not applicable to the facts. If the action were against the sheriff and it clearly appeared that the plaintiff permitted him, without notice or objection, to take away her property, that question might become important. But the action is against the plaintiff in the writ of replevin. He received the property and after notice of the plaintiff’s claim sold it. The plaintiff did'not lose her title to the property even if she permitted the sheriff to remove it. If the property did not belong to the defendant, he had no right to 'sell it and thus convert it to his own use. He did not have the excuse of ignorance if the plaintiff promptly claimed her property from him. It was a question of fact whether the defendant got the plaintiff’s property by virtue of his writ of replevin and converted it, and this a jury alone can determine.

The evidence is not clear as to the character of Daniel Barley’s tenancy of the plaintiff’s farm. The court .excluded the evidence of the terms of the agreement between the plaintiff and him, on the objection of the defendant, but evidence as to some of the terms of the contract was afterward admitted, from which it appeared that the plaintiff owned the farm, that she supplied all the farming implements and the horses; and that Daniel received a share of the crops which he sold; the plaintiff’s share being stowed in the barn; and out of this the defendant’s horses were kept for about a year. The plaintiff does not allege an express agreement, but shows that she owned the farm and the feed, and that the horses were left there by the defendant, out of which facts she claims an implied contract arose. The defendant’s averment was that the horses were left on the place under an arrangement with Job and Daniel. The place at that time belonged to the mother of the. plaintiff who sold it to the latter about four months thereafter. It does not appear that Job had any interest in the farm, nor in the property thereon after the sheriff’s sale. Nor does it clearly appear that Daniel had control over the place or any power to receive the horses to be kept there. The defendant knew they were so kept, and is presumed to have known that they were being fed and cared for at some person’s expense. According to the plaintiff’s evidence they were sheltered in her barn and fed out of her bin and mow. We think it was for the jury to say whether under all the evidence the defendant was liable to the plaintiff for the keep of the horses. It may be that he can show such a state of facts as would relieve him from all liability. It is not clear, however, that he did so at the trial. “ If the evidence is direct, certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inference-of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses, and if there is room for drawing from it different inferences of fact, it múst go to the jury. They must clear up doubts, settle questions of credibility, draw correct inferences and give final shape to findings of fact: ” Corcoran v. Insurance Co., 183 Pa. 443; Dinan v. Supreme Council, 210 Pa. 456.

The judgment is reversed and a venire facias de novo is awarded.


author: Hendekson, J.,

text:
    Brown v. Spackman, Appellant.

      Insurance — Mutual companies — Assessments—Withdrawals—Receivers.
    A mutual insurance company does not by permitting a member to withdraw, relieve Mm from Ms obligation to pay Ms proportion of losses incurred during the life of his policy, even where they were not charged against him prior to his withdrawal. He must pay the proportion of all liabilities occurring during the continuance of his policy up to the time of his withdrawal.
    An order of the court having jurisdiction of the subject directing the receiver of an insolvent mutual insurance company to make assessments on policies to cover losses during the period of the life of the policies, is conclusive both as to the necessity for and the amount of the assessment, and cannot be questioned in either respect in any collateral or ancillary proceeding.

      Argued Nov. 21, 1905.
    Appeal, No. 82, Oct. T., 1905, by defendants, from order of C. P. Chester Co., Jan. T., 1904, • No. 64, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles L. Brown, Receiver, etc., v. George H. Spackman et al., trading as The Coatesville Opera House Company.
    Before Rice, P. J., Beayer, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the statement and of the affidavit of defense are set forth in the opinion of the Superior Court.

      Frror assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      J. Frank F. House, for appellants.
    A policy of insurance in a mutual company is a contract between the company and the insured, and the parties, in good faith, have a perfect right to terminate this contract: Akers v. Hite, 94 Pa. 394; Matten v. Lichtenwalner, 6 Pa. Superior Ct. 575.
    The pleadings, in the present appeal, raise a question of fact, which should have been submitted by the court to the jury, and that question was, whether the Opera House Company had, in fact, paid the amount of money they claimed to have.paid, and if so, whether it was a payment in full of all dues, assessments and shares of losses for which its policy was liable as represented by the company; and whether, upon that payment, the company had accepted a-surrender of the policy, had actually canceled it and had returned the application for the policy.

      Arthur P. Reid, for appellee.
    An order of court directing the receiver of an insolvent live stock insurance company to make assessments on policies, is conclusive both as to the necessity for and the amount of the assessment, and cannot be questioned in either respect in any collateral or ancillary proceedings : Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289; Snader v. Bomberger, 21 Pa. Superior Ct. 629; Moore v. Reifsnyder, 22 Pa. Superior Ct. 326.

      The withdrawal of the defendant does not release him front liability for losses incurred during the life of his policies : Snader v. Bomberger, 21 Pa. Superior Ct. 629; Sparks v. Glass Co., 16 Pa. Superior Ct. 119 ; Doane v. Millville Ins. Co., 45 N. J. Eq. 274 (17 Atl. Repr. 625) ; Commonwealth v. Mass. Ins. Co., 112 Mass. 116 ; Cumings v. Sawyer, 117 Mass. 30; Schofield v. Leach, 15 Pa. Superior Ct. 354; Ins. Co. v. Hartshorne, 90 Pa. 465; Ins. Co. v. Stauffer, 125 Pa. 416; Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289 ; Stockley v. Riebenack, 12 Pa. Superior Ct. 169; Capital City Mut. Fire Ins. Co. v. Boggs, 172 Pa. 91.
    December 11,1905 :
   Opinion by

Hendekson, J.,

The plaintiff’s declaration recites the insolvency of the insurance company, the appointment of the plaintiff as receiver, the decree of the court of common pleas of Dauphin county directing assessments against policy holders for the purpose of paying losses, and that the amount for which this action was brought was one of the assessments so authorized and was for losses incurred while the defendants were members of the company. Numerous losses are set forth alleged to have occurred while the defendants were admittedly members of the company. The defendants say, however, that on January 24, 1900, they paid to the insurance company $40.00, “ which was in full payment of all assessments, shares or losses and the like for which the Coatesville Opera House Company was liable, either by assessment or otherwise, to January 24,1900, and that said sum covered the entire amount that the Coatesville Opera House Company was indebted to the Quaker City Mutual Fire Insurance Company for all assessments and losses due on policies then in existence, and for which the Coatesville Opera House Company would in anywise be liable under its policy.” This is either an averment that the defendants’ proportionate share of all the losses incurred during the life of their policy was $40.00, or that they believed it so to be, or that by an arrangement between them and the officers of the insurance company the sum named was accepted in satisfaction of their liability for losses under the policy. We are confronted, however, by the decree of the court of common pleas of Dauphin county authorizing an assessment to make good the losses of the company, among which is an assessment of $248.98 against the policy held by the defendants. It is well settled that an order of the court having jurisdiction of the subject directing the receiver of an insolvent mutual insurance company to make assessments on policies to cover losses during the period of the life of the policies, is conclusive both as to the necessity for and the amount of the assessment, and cannot be questioned in either respect in any collateral or ancillary proceeding : Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289 ; Snader v. Bomberger, 21 Pa. Superior Ct. 629; Moore v. Reifsnyder, 22 Pa. Superior Ct. 326. The necessity for the assessment was conclusively fixed by the decree of the court of common pleas of Dauphin county, and the propriety of that decree cannot be inquired into in this proceeding. The defendants were not heard when it was entered, and are not precluded from showing that they are not' bound because of the invalidity of the contract, or that their proportion of the losses of the company .had been actually paid. No such defense is here set up, however. The appellants’ utmost contention is that at the time of the cancellation of the policy the amount then paid was represented by the company to be a payment in full of the amount chargeable to the policy up to that time, and that by such payment they were discharged from further liability. That the amount then paid was much less than the actual liability of the defendants is shown by the pleadings, and is not denied in the affidavit. The defendants are compelled, then, to assume the position that they might, with the consent of the company, pay a sum less than the Avhole of the liability and receive a release from the remainder. But this they may not do. A mutual insurance company does not, by permitting a member to withdraw, relieve him from his obligation to pay his proportion of losses incurred during the life of his policy, even where it was not charged against him prior to his withdrawal. He must pay his proportion of all liabilities occurring during the continuance of his policy up to the time of his withdrawal: Schofield v. Leach, 15 Pa. 354; Sparks v. Glass Co., 16 Pa. Superior Ct. 119; Snader v. Bomberger, 21 Pa. Super. Ct. 629; Capital City Mut. Fire Insurance Company v. Boggs, 172 Pa. 91. This is not only in accordance with the essential principle on which mutual insurance companies are organized, that each member will pay his proportionate share of expenses incurred and losses which happen during the period of his membership, People’s Fire Insurance Company v. Hartshorne & Company, 90 Pa. 465, but is within the letter of the defendants’ contract: Article 12 of the by-laws of the company, authorizing the withdrawal of a member and the cancellation of his policy when such retiring member shall have paid all assessments and other charges standing against him on the books of the company, “ together with an additional sum to be fixed by the secretary sufficient to cover his proportionate share of the losses and expenses incurred by the company prior to the date of his withdrawal and not already assessed for.” It is also provided by article 14 of the by-laws that “ members whose policies have expired shall continue liable to assessments for losses and expenses incurred before the expiration of their policies,” and the liability for such losses survives where the policy has been surrendered : Schofield v. Leach, 15 Pa. Super. Ct. 354: Stockley v. Schwerdfeger, supra.

The cases cited by the learned counsel for the appellant are not in conflict with the foregoing authorities. In each of them the principle of liability for assessments to cover losses occurring during the life of the policy is clearly recognized. The only matter of defense available to the defendants is that relating to the payment of $40.00 at the time of the surrender of the policy. As to this there is no controversy, and the court in directing judgment to be entered for the plaintiff allowed credit for that amount. No disputed question of fact is, therefore, presented on the record and the judgment should be affirmed.


text:
    West Point Cotton Mills v. Blythe, Appellant.

      Debtor and creditor — Payment—Check—Setr-off—Account—Accord and satisfaction.

    Where a debtor sends to his creditor a check which is for a less amount than the creditor’s claim by the amount of a set-off shown by a statement of account accompanying the check, but no notice is given the creditor that th? acceptance of the check would amount to a payment in full of the debt, or that it would be treated as a satisfaction of all demands, the use of the check is not an accord and satisfaction of the debt.

      Contract — Sale—Breach of contract — Evidence—Acceptance.
    In an action to recover a balance alleged to be due for goods sold and delivered, it appeared that the plaintiff authorized the defendant by telegraph to sell yarn at twenty-two cents. Two days afterwards the defendant advised the plaintiff, by letter, that he had sold at twenty-one and three quarter cents, “which we trust will be satisfactory. You gave us twenty-two cents as stated as the price for the yam, we could not get it, as we have explained. We are sending order to you at a quarter of a cent more than we obtained and we hope as stated that it will be satisfactory. We shall leave it, however, in your hands.” The plaintiff declined to deliver the yarn at the lower price and the defendant was obliged to supply his customer from another source at a higher price. Defendant claimed to set off this loss against plaintiff’s claim. Held, that the letter left the order and not the price in the plaintiff’s hands, and the plaintiff was not bound to recognize the qualified acceptance of the defendant, nor liable in damages for refusing to do so.
    Argued Oct. 17, 1905.
    Appeal, No. 123, Oct. T., 1905, by-defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 4337, making absolute rule for judgment for waiit of a sufficient affidavit of defense in case of West Point Cotton Mills v. Richard A. Blythe.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Defendant’s affidavit of defense was as follows:
    Deponent admits that on December 2 or 3, 1903, the plaintiff consigned to the defendant the yarn mentioned in the statement of claim, and further admits that after the sale of said yarn, and after deduction for discount and commission, as set forth in the statement, plaintiff was entitled to $706.94.
    Deponent further admits that payment of the check for the said sum of $706.94 was stopped, as set forth in the statement, for the reasons hereinafter set forth.
    That as a defense to the claim of the plaintiff, deponent avers as follows:
    Plaintiff company is engaged in the business of spinning and weaving yarns at its mills in West Point, Mississippi, and the defendant is a commission broker in yarns and cottons in the city of Philadelphia.
    That for a period of several years past, plaintiff and defendant have had numerous transactions with each other in the matter of buying and selling yarns and warps, and sales and purchases were made and accounts entered into between the parties during said period.
    That on September 19, 1904, the plaintiff telegraphed to defendant to sell 15,000 pounds of 36-2 ply at twenty-two cents per pound, a copy of which telegram is hereto annexed, marked exhibit “A,” together with the translation thereof under the code agreed upon between plaintiff and defendant as follows: “ Telegraphed sell 15,000 pounds 36-2, 22c., wire answer.”
    That the best price which the defendant could procure for said yarn was twenty-one and three-fourths cents, and sent an order for 7,500 pounds of said yarn at said price of twenty-one and three-fourths cents, informing plaintiff that unless the defendant sold the same at the price of twenty-one and three-fourths cents he would lose the sale thereof; but if plaintiff would not accept the said price as named by defendant, then, as stated by the defendant, the price of twenty-one and three-fourths cents or twenty-two cents was left entirely in the hands of the plaintiff. That copies of said order and communication sent therefor are hereto annexed, marked exhibits “ B ” and “C.”
    That after said order was sent, plaintiff refused to ship said yarn, and has still refused to ship the same, after repeated demands made by the defendant.
    That the customer of the defendant for whose account said yarn was ordered by the defendant of the plaintiff, having made demand upon the defendant for the delivery of said 7,500 pounds of yarn, the defendant, after due notification to the plaintiff that he would go into the open market and purchase the said yarn at the best price that the same could be purchased for, and would hold the plaintiff liable for the difference, did go into the open market and purchase 7,500 pounds of yarn at the best price that the same could be purchased for, at the time of said purchase, to wit: twenty-five cents per pound, in the month of October, 1904.
    That the loss to the defendant of 7,500 pounds of yarn at twenty-five cents per pound, less the usual and customary discount and commission, amounted to $207.34.
    That there was due to plaintiff by the defendant for account of yarns sold on September 1,1904, the sum of $706.94. That in the latter part of September, 1904, the defendant sent his check to the plaintiff for the said sum of $706.94.
    That because of a dispute having arisen between the plaintiff and defendant by reason of the failure of the plaintiff to ship the yarns as above set forth, and which dispute was not adjusted between the parties until the early part of November, 1904, and for the purpose of enabling the defendant to properly adjust his just- and true account between himself and the plaintiff for the yarn consigned as mentioned in plaintiff’s statement, and for other yarns and interest accounts due by the defendant to the plaintiff, the defendant did, on November 11, 1904, send to plaintiff his certain check for the sum of $616.11, being in full of all accounts and transactions between the parties, plaintiff and defendant, as follows:
    Amount due plaintiff on Sept. 1, 1904, $706.94
    Interest on same, '. . . . 1.98
    ■-708.92
    Interest on last mentioned sum from
    September 1 to Sept. 20, 1904, . . . 3.55
    Other sales for account of plaintiff . . . 101.36
    $813.83
    Interest on last mentioned sum from
    October 1 to November 1, 1904, . . . 4.21
    Other sales for account of plaintiff, . . 5.41
    $823.45
    That when defendant sent to plaintiff his check for $616.11, as aforesaid, he sent at the same time, inclosed in the same envelope, a statement of all transactions and accounts between the parties, together with a written memorandum of defendant’s claim for three cents per pound, being the difference at which plaintiff sold the yarn to defendant, and the price at which defendant was obliged to purchase the same after the plaintiff’s refusal to deliver it, as above set forth, and which memorandum shows a credit to the plaintiff of the usual and ordinary five per cent commission of three per cent discount liable in the trade, and which said check of $616.11, as accompanied by the said statement and memorandum as aforesaid, was accepted in full of all accounts between the plaintiff and defendant.
    That copies of said check, statement and memorandum are thereto annexed, marked exhibits “ D,” “ E,” “ F.”
    “ Exhibit ‘ C.’
    “ Sept. 21st, 1904.
    “West Point Cotton Mills,
    “ West Point,' Miss.
    “ Gentlemen:—
    “We confirm our telegram instructing you to ship 7,500 lbs. of 36-2 ply skein, and beg to enclose order for the same here•with. Now the price you gave us was 22 cents. Our customer had this yarn offered by two other houses at 21£ cents. We had either to take this price or lose it, so therefore rather than be cut out of the trade we closed with the customer and we are dividing our commission with you and sending the order to you at 21f cents, which we trust will be satisfactory. You gave us 22 cents, as stated, as the price for the yarn. We could not get it as we have explained. We are sending the order to you at a quarter of a cent more than we obtained, and we hope, as stated, that it will be satisfactory. We shall leave it, however, in your hands. We did not want to get out with customer and we thought it advisable to sell. The same customer has a lot of 40-2 ply offered to him at 22 cents. I don’t know whether this would appeal to you or not. I have wired you to know whether you would care to close out 5,000 to 10,000 lbs. of 40-2 ply at 22 cents and now await your reply.
    “ In making this shipment, please have it traced, as customer wants prompt delivery, and shipments from West Point are at times greatly delayed, therefore, as requested, please do not fail to trace, and oblige,
    “Yours truly,
    “ Richard A. Blythe.”
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Jere J. Crowley, with him Henry C. Huey, for appellant,
    cited as to the check: Krauser v. McCurdy, 174 Pa. 174; Gas Co. v. Johnson, 128 Pa. 576; Christman v. Martin, 7 Pa. Superior Ct. 568.

      Gr. Albert Smyth, for appellee,
    cited:. Krauser v. McCurdy, 174 Pa. 174; Ziegler v. McFarland, 147 Pa. 607; Girard Fire & Marine Ins. Co. v. Canan, 195 Pa. 589.
    December 11, 1905:
   Opinion by

Henderson, J.,

The correctness of the plaintiff’s claim is admitted in the affidavit of defense. The defense consists of an alleged set-off, and an accord and satisfaction. It is very clear that the averment of the affidavit that a check sent to the plaintiff was accepted in full of all accounts was not intended as an assertion that the plaintiff had agreed to so accept. It is the defendant’s conclusion from the facts. The plaintiff received the check and used it. It was' accompanied by another paper containing a statement of the defendant’s account with the plaintiff in which a credit was claimed for damages on account of the failure of the plaintiff to deliver yam in accordance with a contract which the defendant alleges was entered into. No notice was given to the plaintiff when the check was sent that its acceptance would amount to a payment in full of the plaintiff’s claim, or that it would be treated as a satisfaction of all demands. Nor was the plaintiff informed that a compromise ivas tendered. The amount of the cheek was admitted to be due by the defendant, and the copy of the account accompanying it was apparently intended as a statement of what the latter considered the plaintiff owed him on account of the alleged breach of contract. There was no memorandum on the check that it was to be received in full of all claims or to "be accepted in full of all accounts, or to be accepted in connection Avith the statement of account inclosed. In Ziegler v. McFarland, 147 Pa. 607, a check Avas sent for a part of a claim and with the check a receipted bill for a counterclaim. The check was cashed and the receipt retained for a time, but the transaction Avas held not to amount to an accord and satisfaction because there was no positive averment in the affidavit of defense that the payment was conditional, or that an express direction for its application was given. So here, there is an absence of notice to the plaintiff that the receipt of the check would be considered satisfaction of the account. The defendant’s allegation that the check was accepted in full of all accounts between the plaintiff and the defendant is clearly argumentative.

The claim of set-off depends upon the interpretation of the defendant’s letter of September 21, 1904, in reply to the plaintiff’s telegram of September 19, 1904. The telegram authorized the defendant to sell yarn at twenty-two cents. Two days afterward, the defendant advised the plaintiff, by letter, that he had sold at twenty-one and three-quarter cents, “ which we trust will be satisfactory. You gave us twenty-two cents as stated as the price for the yarn, we could not get it, as we have explained. We are sending order to you at a quarter of a cent more than we obtained and we hope, as stated, that it will he satisfactory. We shall leave it, however, in your hands.” The plaintiff declined to deliver the yam at the lower price and the defendant was obliged to supply his customer from another source at a higher price. The difference in price he claimed to charge against the plaintiff. The evidence of the ■transaction between the parties is in writing and its interpretation is for the court. It seems apparent that the defendant’s letter was not an acceptance of the plaintiff’s offer contained in the telegram. It named a price lower than that given -by the plaintiff and expressed the hope that the latter would accept the price. The words in the letter were, “We are sending the order to you at a quarter of a cent more than we obtained and we hope, as stated, that it will be satisfactory. We shall leave it, however, in your hands.” We are unable to accept the defendant’s interpretation of the letter, that the subject which he left in the plaintiff’s hands was the price and not the order. The plaintiff was not bound to recognize the qualified acceptance of the defendant, nor liable in damages for its refusal so to do.

The judgment is affirmed.


author: CAVANAUGH, Judge:

text:
    434 A.2d 99
    COMMONWEALTH of Pennsylvania, v. John P. KRALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed May 15, 1981.
    Reargument Denied Sept. 15, 1981.

      John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
    Thomas S. Long, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

The appellant was convicted of burglary, conspiracy and receiving stolen property following a jury trial before Walter, J. Motions for new trial and in arrest of judgment were denied and the appellant was sentenced to five to twenty years for burglary, five to twenty years for criminal conspiracy and three and one half to seven years for receiving stolen property. All sentences are to run concurrently. Appellant has filed a direct appeal to this Court from the judgment of sentence.

On or about January 28, 1978, Kleinfelter’s Auction Room was broken into. Among the items removed were a safe located in a second floor apartment, as well as jewelry, two pistols, a large silver service and coins. On the early morning of January 29, 1978, the appellant and William Kelliher, who had worked at Kleinfelter’s Auction until June, 1977, and who was familiar with the upstairs apartment, as well as the downstairs offices and rooms, arrived at a Mr. Harlan’s home, according to the testimony of Mr. Harlan who was the principal witness for the Commonwealth. Mr. Harlan testified that appellant requested a screwdriver, sledgehammer and flashlight from him and that appellant and Kelliher then removed a safe from a pickup truck which they had with them and which also contained several boxes. Harlan testified that appellant and Kelliher finally broke open the safe which contained old coins, jewelry and papers and that appellant acknowledged that the safe came from Kleinfelter’s Auction House.

At trial, the appellant called his girl friend, Bonnie Swei-gart, to testify on his behalf. She testified that at the time of the alleged crimes she and the appellant were living together. She further stated that at about noon on January 29, 1978, Paul Harlan came to her home looking for the appellant and she refused to say where he was. According to her testimony, at that time the appellant was visiting her sister’s house. Appellant’s sister also testified that on the afternoon of January 29, 1978, appellant was at her home.

On cross-examination the following testimony was given by Miss Sweigart:

Q. Miss Sweigart, isn’t it true that you were charged with the offense of retail theft, along with Paul Harlan?
THE COURT: Answer the question yes or no.
A. Yes.
Q. Isn’t it true that Paul Harlan was going to testify against you in that case?
THE COURT: Likewise, answer the question yes or no.
A. Yes.
Q. Isn’t it true that in that he was going to testify against you and you voluntarily placed yourself on the A.R.D. program?
A. Yes.

The A.R.D. program referred to in cross-examination is the accelerated rehabilitative disposition program provided for in Pa.R.Crim.P. 175 to 185 inclusive. Not only was Miss Sweigart’s participation in the A.R.D. program referred to in her cross-examination, but the judge in his charge to the jury also referred to Miss Sweigart’s conviction. There is no doubt that a conviction for retail theft may be used to impeach the credibility of a witness. Commonwealth v. Vickers, 260 Pa.Super. 479, 394 A.2d 1027 (1978). However, the veracity of a witness may not be impeached by prior criminal conduct which has not led to a conviction. Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977). The threshold question for our determination is whether a defendant’s admission into an A.R.D. program constitutes a conviction for purposes of impeachment. We believe that it does not. Pa.R.Crim.P. 181 provides:

When a defendant is accepted into the program of accelerated rehabilitative disposition after information or indictment, the judge shall order that further proceedings on the charges shall be postponed during the term of the program.

Pa.R.Crim.P. 184(c) provides that if “the judge finds that the defendant has committed a violation of the condition of the program, he may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law.” Further, the comment to Pa.R.Crim.P. 177 sets forth a form of notice to the defendant which includes this language:

[B]ecause there are reasons in your case to believe that you would be helped more by being placed on probation than by being convicted and sentenced to jail, your case has been chosen for the Accelerated Rehabilitative Program. (Emphasis added). See also Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979).

The thrust of the A.R.D. Program is to enable a defendant, before he has been convicted of a crime, to enter into a program which hopefully will result in his rehabilitation without the necessity of trial and conviction. If the program does not succeed the Commonwealth may then proceed on the charges. In effect, admission into the A.R.D. Program places the criminal proceedings in abeyance, subject to being reactivated under certain conditions. The court below realized that it erred in permitting questions by the prosecution pertaining to Miss Sweigart’s being charged with retail theft and her subsequent admission into the A.R.D. Program, but determined that it was harmless beyond a reasonable doubt. The burden is on the Commonwealth to prove harmless error beyond a reasonable doubt. Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974), cert. denied and appeal dismissed, Martinolich v. Pennsylvania, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974). We do not believe the Commonwealth has met its burden. If the evidence is substantial and a witness’s testimony, even if believed did not exonerate the defendant, an error in inquiring about prior criminal activity may be harmless. See United States v. Trowery, 471 F.Supp. 23 (W.D.Pa.1978). In this case, the principal evidence concerning appellant’s guilt was from Mr. Harlan, and apart from his testimony it was not overwhelming.

The court below also erred in its charge to the jury when it stated the following:

Now members of the jury, you have heard evidence that two of the witnesses had been convicted of crimes of theft. Mr. Harlan was one, and—I don’t want to make a mistake about this—Rebecca Brensinger?—
MR. LONG:
Bonnie Sweigart.
THE COURT:
—Oh, I’m sorry—Bonnie Sweigart; right, Bonnie Swei-gart it was. It was the witness for Mr. Krall. Mr. Harlan, of course, was one of the witnesses for the Commonwealth. You may consider that evidence of prior conviction in deciding whether or not to believe all or part of their testimony, but that is the only purpose for which you may consider it. In doing so, you may consider the type of crime committed, how long ago it was committed, and how the conviction may effect [sic] the likelihood that either Bonnie Sweigart, or Paul Harlan, or both, has testified truthfully in this case.

The court below not only erred when it permitted the impeachment of Miss Sweigart, although she had not been convicted of retail theft, but compounded the error when the trial judge again referred to Miss Sweigart’s prior conviction in its charge to the jury. He told the jury that it could consider how Bonnie Sweigart’s conviction may have affected the likelihood that she testified truthfully in this case. Counsel for the appellant objected to the part of the judge’s charge quoted above. The charge to the jury was clearly in error with respect to the prior convictions of appellant’s witness and the Commonwealth has not proved beyond a reasonable doubt that the error was harmless.

The defendant in a criminal case may cross-examine prosecution witnesses with respect to the juvenile record of the witness, although such records are shielded by law, on the basis of the constitutional right to confrontation. See Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 347 (1974). We recognize that in this case it was the Commonwealth that was involved in cross-examination of a defense witness. It is yet undecided whether the Commonwealth’s right to show bias of a defense witness is sufficient to overcome the prohibition against inquiry into such matters as a juvenile record or admission into an A.R.D. Program.

Judgment of sentence reversed and case remanded for new trial.

      . The case referred to in cross-examination involving Mr. Harlan and Miss Sweigart was not related to the instant case.


author: WATKINS, Judge:

text:
    484 A.2d 102
    COMMONWEALTH of Pennsylvania v. Joseph BOARDMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1980.
    Filed June 19, 1981.
    Reargument Denied Sept. 15, 1981.
    Petition for Allowance of Appeal Denied Nov. 9, 1981.

      Morris Gerber, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the imposition of sentence after a plea of guilty. The court below relates the circumstances surrounding the plea.

“On December 7,1978, the defendant entered an open plea of guilty to nine informations, encompassing seven (7) counts each of burglary and criminal conspiracy, nine (9) counts each of theft of movable property and receiving stolen property and three (3) counts of criminal trespass. Following a pre-sentence investigation, the defendant was sentenced to seven (7) concurrent terms of four to fifteen (4-15) years imprisonment on the burglary charges and two and one-half to five (2 & 1/2-5) years imprisonment on the theft and conspiracy charges to be served concurrently with the burglary sentences. The remaining charges were either merged with the burglary conviction or sentences were suspended.

A hearing was held on the petition for reconsideration of the sentences and the original sentences were imposed. However, the court below admits that a clerical error caused the sentence of theft of movable property to be the same as imposed on the burglary charges. The sentence should be reduced to the original sentence of two and one-half to five (2 & 1/2--5) years and this Court will make the correction.

The principal argument of the defendant is that the sentences are unduly harsh and excessive. We have said many times that sentencing is within the discretion of the trial court and we will not interfere unless they exceed the statutory limits or are so manifestly excessive as to constitute too severe a punishment. Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80 (1971).

The court below considered carefully the statutory provision designed to guide its sentencing discretion. Act of December 6, 1972, P.L. 1482, No. 384, as amended, December 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S.A. §§ 1322, 1325.

The court recited its reasoning for the sentences as follows:

“A review of this record establishes that the following factors justified the sentence imposed: (1) the defendant had a history of addiction to amphetamines, thus making a return to crime statistically likely, (2) the defendant did not act under any provocation, (3) the victims were in no way responsible for the crimes, (4) the number of separate offenses involved precluded the defendant from being considered an initial offender, (5) no excessive hardship would be presented by incarceration, (6) the defendant is in need of correctional treatment, (7) a lesser sentence would depreciate the seriousness of the crime involved. Therefore, under these circumstances and given the fact that the sentence imposed is well within the statutory limits, Act of December 6, 1972, P.L. 1482, No. 834, 18 C.P.S.A. 1103(1), the sentence cannot be seen as improper. Commonwealth v. Barton [Burton], 451 Pa. 12 (1973).”

James Dilliplane, the defendant’s accomplice was sentenced to two and one-half to seven years imprisonment. The defendant and Dilliplane went on an extensive crime spree in Montgomery County. Before apprehension they had committed seven burglaries and two thefts. Following arrest, a search of the defendant’s home disclosed the presence of thousands of dollars of stolen merchandise. The defendant Was the older of the two. The defendant was in his early thirties, while Dilliplane was in his early twenties.

The defendant served in the Marines for six years, served ten months in Viet Nam and was awarded purple hearts and discharged a Corporal. The court below took into consideration his war record, but also: considered from his age and experience that he was the ringleader of the criminal spree.

The defendant relies on Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870 (1976). He contends that the sentence is invalid as his co-defendant who was also a repeat offender received a lesser sentence. The co-defendant was sentenced to two and one-half to seven years pursuant to a plea agreement under which he agreed to testify on behalf of the Commonwealth.

In Commonwealth v. Hill, supra, there was no presentence investigation and the court below at sentencing was under a misapprehension as to prior offenses. This is not true in the instant case. Although the sentences in Hill, supra, were overturned, the court pointed out:

“we do not suggest that every situation where co-defendants are sentenced will require proportionment of sentences according to past criminal records; but here the difference in past records is significant. Each case raising the issue of excessive sentence must be reviewed on the circumstances of that case alone, recognizing that the trial judge has broad discretion in imposing sentence, and that if the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too sever a punishment.”

Judgment of sentence affirmed; and sentence on the theft of movable object charge reduced to two and one-half to five (2 & 1/2-5) years.


text:
    434 A.2d 103
    COMMONWEALTH of Pennsylvania v. Gregory SIMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb, 25, 1981.
    Filed July 10, 1981.
    Reargument Denied Sept. 4, 1981.

      Burton A. Rose, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   SPAETH, Judge:

This is an appeal from an order denying relief under the Post Conviction Hearing Act.- The issue is whether appellant should be granted a new trial because the guilty plea colloquy was defective. The plea was entered as the result of a plea bargain. The record shows that had counsel informed appellant that the colloquy was defective, appellant would not have withdrawn his plea and gone to trial, but would have accepted the bargain. In these circumstances, we affirm.

On December 18, 1972, appellant was arrested and charged with larceny, receiving stolen property, possession of burglary tools and conspiracy. On March 14,1974, pursuant to a plea bargain, appellant pleaded guilty to the charge of larceny and the lower court sentenced him to three years probation. Appellant took no appeal from the judgment of sentence.

On May 20, 1976 appellant was found to be in violation of his probation and was resentenced to a term of eleven and one-half months to twenty-three months imprisonment, to be served consecutively to any other sentence of confinement he was then serving. On June 2, 1978, appellant filed, pro se, a petition under the Post Conviction Hearing Act and requested the lower court to appoint counsel to represent him. On September 18, 1978, court-appointed counsel filed an amended PCHA petition, alleging that on March 14,1974, appellant did not waive his right to a jury trial voluntarily and intelligently, that the guilty plea colloquy was defective in a number of respects, and that his attorney was ineffective in not drawing these defects to his attention and in not advising him of his right to withdraw his plea or challenge it on direct appeal.

On October 2, 1979, the lower court held an evidentiary hearing on these allegations, and on September 24, 1980, filed an opinion and order denying appellant’s petition. It is from this order that appellant appeals.

The Commonwealth does not dispute appellant’s contention that the guilty plea colloquy was defective; the colloquy did not explain the elements of the crime of larceny nor the permissible range of sentences for that offense. See e. g., Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974).

Appellant’s former counsel did not testify at the evidentiary hearing on appellant’s PCHA petition; the only witness was appellant himself, and he did not testify in any detail about counsel’s advice concerning the plea bargain. However, as the lower court found, appellant testified “that even if counsel had advised him of the defect in the plea he would not have chosen to negate the plea and go to trial.” Slip op. at 5.

Appellant argues that this finding was error, but the record supports it. At the hearing appellant testified under cross-examination as follows:

[THE COURT]: My recollection of the question, counsel, and you can rephrase it if my recollection is not accurate, after the guilty plea if your attorney had told you that there were defects in what had taken place and in effect that he could get you a new trial—
THE WITNESS: No, he didn’t.
THE COURT: You didn’t hear my question. Would you have wanted to have a new trial?
In essence is that your question?
MR. LIPOWICZ [Assistant District Attorney]: Yes, Your Honor.
In light of the three-year probation.
A. The time I took the deal I was confined and they told me I could get out on the street right that same day so I went along with it. That was my reason for going along with it.
*
Q. And if he had told you that we could wipe that all off and you could go to trial in this case, would you have wanted to do that?
* * * * * *
A. If he could have guaranteed me that he could get me some street as he was doing with the probation, I would have went to trial.
Q. But if he could not guarantee it, you would not have wanted a trial?
A. No.
N.T. at 31-32.

Thus, appellant’s own testimony was that even if counsel had told him that the guilty plea colloquy was defective, he would not have chosen to withdraw his plea unless counsel had assured him that if he went to trial and were convicted, he would receive the same sentence—probation—as under the plea bargain. In these circumstances we shall not now give appellant the benefit of an option—a jury trial—that he himself would not originally have chosen. Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979).

Affirmed.

      . 19 P.S. § 1180-1 et seq.

      . Reference is to the opinion filed on September 24, 1980.