text:
    Rice to use v. Lake Township, Appellant.

      Contract — Evidence—Oral agreement — Question far jury.

    1. In an action on a contract where all the evidence as to the agreement is oral, the case must be submitted to the juryj although the evidence may not be conflicting, or in any way contradictory. In such a case plaintiff’s right to recover must be submitted to the jury because the burden of proof which the law casts upon him has not been discharged until the credibility of his witnesses has been passed upon by that tribunal.

      Townships — Township supervisors — Contract — Purchase of road scraper.

    2. In an action against a township to recover the price of a road scraper, it is error to give binding instructions for the plaintiff where there was no evidence to show that the supervisors had consulted and deliberated as to the material elements of the contract, and it appears that they had kept no minute of their meeting, or of the making of the contract.
    3. In such a case ratification of the contract by the township cannot be established by proof that later supervisors who had no knowledge of the agreement, had used the machine, had made inquiries as to a note that had been given to secure the purchase money, and that the township auditors had reported such a note as an outstanding debt of the defendant township.
    4. It is doubtless true that a township, like every other member of a civilized society, should be required to pay its honest debts, but township officers act, not for themselves, but for the whole body of taxpayers. It is of the first importance that those who undertake to deal with such officers should not, in their eagerness to deal, allow themselves to become blinded to the fact that the public safety requires that those who deal with such officers, with the expectation of binding the municipality they represent, must see to it that the officers act within the scope of their authority and comply with the requirements prescribed by the law in order that their acts may become official and binding on their principal. Per Head, J.
    Argued March 2, 1909.
    Appeal, No. 26, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., March T., 1906, No. 383, on verdict for plaintiff in case of H. F. Rice to use of Jonathan Lemon v. Lake Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover the price of a road scraper. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court. •
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $11.20. Defendant appealed.

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

      Granville J. Clark, for appellant.
    The township was entitled to the judgment and consideration of both supervisors as to (1) the advisability of buying a new machine; (2) the kind of a machine to buy; (3) the price to be paid, and (4) the terms of payment: Mitchell v. Kearns, 16 Pa. Superior Ct. 357-359; Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105; Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477.
    Those who deal with townships must know that the powers of supervisors are limited, and unless the supervisors act in conformity with law the township is not bound: Machinery Co. v. Old Lycoming Township, 25 Pa. Superior Ct. 156; Gibson v. Plum Creek Poor Dist., 122 Pa. 557; Cooper v. Lampeter Twp., 8 Watts, 125; Austin v. Ayr Mfg. Co., 31 Pa. Superior Ct. 356.
    The contract of purchase was not ratified: Jenkins Twp. v. Yatesville Boro., 1 Kulp, 190.

      A. C. Campbell, for appellee.
    That Kocher and Adelman, the supervisors, honestly conferred with each other and fairly deliberated concerning the necessity for the purchase of a road machine, the kind of a machine, the price and the terms of payment, before they attempted to bind the township by their action in buying the machine, for which suit was brought, cannot be disputed: Wheeled Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477; Austin Mfg. Co. v. Ayr, 31 Pa. Superior Ct. 356; Good Roads Co. v. Union Twp., 34 Pa. Superior Ct. 538.
    July 14, 1909:
   Opinion by

Head, J.,

The use plaintiff seeks to recover from the defendant township a sum of money which he alleges was the purchase price of a road scraper that the defendant, through its supervisors, agreed to buy from the legal plaintiff and pay therefor the sum claimed. At the time of the alleged contract, Lake Township had two supervisors. Along with his declaration, the plaintiff files what he calls a copy of the agreement of purchase. This • appears, however, to be nothing more than a simple promissory note, date May 5, 1903, promising to pay to the legal plaintiff $320 on or before January 1, 1905, with interest. This paper is signed, J. W. Kocher, Supervisor Lake Township, A. RAdeíman, Supervisor Luzerne County. The note states upon its face that the money therein mentioned was “for payment on one road machine.” The present action, however, is not brought upon this note, but is founded on an alleged agreement made by the township, through its supervisors, to buy a machine and pay for it.

At the conclusion of the trial the learned court below directed a verdict for the plaintiff for the amount of his claim. All of the testimony which tended to establish such claim was oral. In such cases, even where the evidence is not conflicting or in any way contradictory, many decisions could be cited wherein it has been declared that the plaintiff’s right to recover must be submitted to the jury because the burden of proof which the law casts upon him has not been discharged until the credibility of his witnesses has been passed upon by that tribunal. We need not here stop to inquire whether this doctrine has been to any extent modified by the trend of the latest utterances of the Supreme Court on the subject because, in order to affirm the action of the learned court below, we would be obliged to go further than any reasonable modification of the principle stated could carry us.

Looking at the testimony of the only three witnesses to the transaction, we are led to the conclusion not only that it is contradictory, but that as to important matters, it is confusing and obscure. The situation presented by this record is fairly described in the following language used by Oklady, J., in Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105; “No two of the four supervisors, who participated in making the contract for the purchase of the crusher, recollect the particulars of the transaction with any degree of certainty, and we have the anomalous fact of the liability of this township depending upon the confusing statements of the supervisors in regard to their own acts while under the tutelage of the'plaintiff’s agent; all of which would have been avoided if they had acted at regularly convened meetings, and the township clerk .... had kept a record of the proceedings of the said officers open to the inspection of any person who might have occasion to search therein.” In the case at bar, like the one from which we have just quoted, no minutes of the alleged official acts of the supervisors in relation to the purchase of the road machine in question were kept.

It appears from the testimony of Rice, the legal plaintiff, who was the agent of or manager for Russell & Co., of Philadelphia, that on a certain Sunday in April, 1903, he called upon Kocher, one of the supervisors of the defendant, to inquire whether or not their township would be in the market for the purchase of a road machine. The two concluded to drive over and see Adelman, the other supervisor. Rice expressly states that he did not go there with the expectation of doing any business on that day, but merely to learn whether or not a purchase of a machine was contemplated. Both he and Kocher agreed in their statement that no contract whatever was entered into that day. They further agree that Adelman seemed to be opposed to the purchase of a new machine, and was of the opinion that the old ones then owned by the township could profitably be repaired. They still further agree that when they left Adelman on that day, the arrangement was that Kocher would make a more careful inquiry into the condition of the old machines, the probable cost of their repair, etc., and meet with Adelman at a later date. Rice never visited Adelman again. A few weeks later, however, he did return to see Kocher. The latter then told him that he and Adelman had agreed to buy a machine. On that day he ordered it, agreed on the price, fixed the time and terms of payment, and gave to Rice the note already referred to, which he then and there signed himself, and to which he affixed the name of Adelman under the authority to which we shall presently refer.

Kocher testifies that he did visit Adelman a second time, and that they then agreed to buy a machine. That Adelman then gave to him some paper in which he authorized Kocher to use his name in the purchase of the machine, and that acting upon this authority, he went on and executed the contract in the manner above stated. The paper referred to by the witness was not produced at the trial, and the evidence as to its contents is confined to what is said by Kocher and Adelman concerning it.

Adelman testifies that Kocher never visited him on the subject except on the Sunday first mentioned when he was in company with Rice. He says that he was opposed to buying a machine; “that if Mr. Kocher wanted a machine he could buy it. Then Mr. Rice said he was the agent there; wanted to know if I would sign a paper, let him use my name as supervisor if I did not want no hand in buying it. I told him I would. He drawed up the paper that day there and I signed it. As far as I can tell it was to let Mr. Kocher use my name as supervisor to buy a road machine.” He further states that he knew nothing about the price of the machine until after it had arrived and was not told how or when the money was payable.

In Mitchell v. Kearns, 16 Pa. Superior Ct. 357, a bill was filed to restrain the carrying out of an alleged contract for the purchase of school books. In discussing the scope of the consultation and deliberation required by the law of public representatives who undertake to bind a township, school district, etc., by their official acts, this court said: “The kind and number of the American Book Company’s books, and the prices to be paid therefor were left undetermined by the resolution. These were matters requiring deliberation, consultation and judgment, and to such action the principle applies that all the members of the board should be convened, or be afforded an opportunity to be present at the meeting at which they are to be determined, because the advióe and opinions of all may be useful, though all do not unite in opinion. ”

If the testimony of Adelman, as above quoted, be accepted as true, it is certainly difficult to see when or where the two supervisors had consulted and deliberated as to the material elements of the contract with which it is now sought to bind the township. How could the learned court below reject this testimony or any part of it? If Adelman says that he did not know what kind of a machine was likely to be bought, what the price of it was to be, what terms of payment were to be agreed upon; what tribunal other than a jury could say that he did have such knowledge? It seems clear to us from an examination of this testimony that the learned court'below fell into error in directing a verdict for the plaintiff. If the proof adduced by the plaintiff, even when taken in its most favorable light, was sufficient if believed to show a binding contract on the part of the township, the question was for the jury under proper instructions.

Complaint is made that evidence was admitted, over the objection of the defendant, tending to show that after the machine had been delivered it was used on the township roads, not only by the supervisors who are alleged to have purchased it, but by subsequent ones, their successors in office. In Austin Mfg. Co. v. Ayr, 31 Pa. Superior Ct. 356, this court, speaking through President Judge Rice, said: “But, as supervisors have power to make such a contract they have power to ratify it, notwithstanding the irregularity of their action at the outset.” To the same effect is Geiser Mfg. Co. v. Frankford Twp., 34 Pa. Superior Ct. 146.

It would seem to follow, from an application of this principle to the case in hand, that even though the original purchase of the machine was made in such an irregular and improper manner that the township could not then be considered bound, yet if the evidence would show that after the machine had arrived, after both supervisors had full knowledge of its design, size and capacity, and after both had discussed the price and terms of payment, they concluded to accept it and use it, such acts relating back to the original contract would supply what it then lacked, and the township could be fairly held to have entered into a lawful contract. Beyond this, however, we cannot see that the fact of the use of the machine by later supervisors, who knew nothing of the original contract and simply found the machine in the possession of the township when they took office, would be evidence relevant to the issue presented by the record before us. It could throw no light on the original contract, nor aid the court and jury in the determination of the real question involved.

We have already seen that this action was not founded on the note to which we have referred. It was not even offered in evidence as tending to establish an original and valid indebtedness on the part of the township. We are unable to see how the letters, written by a subsequent supervisor to the holder of that note, could in any way bind the defendant township if it was not already bound. In such a case a new supervisor, learning of the existence of such a note, would naturally be solicitous about its payment, but any inquiries he might make along such lines we do not think could in any way injuriously affect the status of the defendant in contesting the question of its liability under the original contract. The same may be said of the auditor’s report, in which the existence of this obligation is noted as an outstanding debt of the defendant township. This was but the statement of a fact of which there is no dispute, and should not, we think, be relevant to the determination of the question whether the township was liable for the purchase money of the machine or not.

It is doubtless true that a township, like every other member of a civilized society, should be required to pay its honest debts, but township officers act, not for themselves, but for the whole body of taxpayers. It is of the first importance that those who undertake to deal with such officers should not, in their eagerness to deal, allow themselves to become blinded to the fact that the public safety requires that those who deal with such officers, with the expectation of binding the municipality they represent, must see to it that the officers act within the scope of their authority, and comply with the requirements prescribed by the law in order that their acts may become official and binding on their principal.

For the reasons given, the case must go back to be tried in accordance with the principles of evidence outlined in this opinion.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Nanticoke Bridge.

      Bridges — Eminent domain — Condemnation—Railroad—Toll bridge— Acts of June 14,1873, P. L. (1874) 421, and May 8,1876, P. L. 131.
    A bridge built by a corporation under the Act of June 14, 1873, P. L. (1874) 421, authorizing the construction thereof “for railroad, wagon and other purposes,” and also authorizing a charge of toll “for the use thereof,” cannot be condemned by the county, where it appears that the corporation occupied the entire bridge with the tracks of a railroad, and only permitted the use of it to the public generally as a toll bridge, when it was not in actual use for railroad purposes.
    Submitted March 4, 1909.
    Appeal, No. 45, March T., 1909, by R. R. Jones et al., from order of Q. S. Luzerne! Co., dismissing petition to appoint viewers In re Acquisition by the County of Toll Bridge at Nanticoke, Pa.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to appoint viewers to assess damages for the freeing of a bridge. Before Fuller, J.
    The opinion of the Superior Court states the facts.
    The court in an opinion by Fuller, J., dismissed the petition.

      Error assigned was the order of the court.

      Thomas Buthiewicz, Jr., and Charles F. McHugh, for appellants.
    An act granting corporate privileges to a body of men is, when accepted, a contract between the state and the corporation: Erie & North West R. R. Co. v. Casey, 26 Pa. 287; Clarion Turnpike & Bridge Co. v. Clarion County, 172 Pa. 243; Penna. R. R. Co. v. Com., 3 Grant, 128; Phila. etc., R. R. Co.’s App., 120 Pa. 90.
    The doctrine is well settled that it is an incident to the sovereignty of every government that it may take private property for public use, and that the exercise of this power is not in conflict with the constitution of this state or of the United States.
    It seems to be equally well settled that the state cannot part with, sell or abandon its right of eminent domain: Branson v. Philadelphia, 47 Pa. 329; In re Twenty-Second Street, 102 Pa. 108; Com. v. Canal Co., 66 Pa. 41; Bridge Co. v. Clinton County, 157 Pa. 379; Philadelphia, etc., Ry. Co.’s App., 102 Pa. 123; In re Towanda Bridge Co., 91 Pa. 216; Bank v. Com., 10 Pa. 442.
    The power of the state to dedicate for public use a right granted, when the necessity for public use and the burdensomeness of the rights granted are established, is necessary to the very existence of our form of government, and is to be construed strongly in favor'of the public.

      F. W. Wheaton and Henry W. Palmer, for appellee.
    This appeal is in effect a certiorari, because the proceedings are statutory, and no appeal is given by the statute. The case is not open to review on the merits. Treating it as in the nature of a summary petition, however, the appellate court will not stop at a mere inspection of the docket entries, or the formal proceedings, but will look at the opinion, as well as the action of the court below, to see the basis on which it acted: Krickbaum’s Case, 221 Pa. 521.
    Corporate franchises, although held and enjoyed under a charter which contains no reserved power of alteration or repeal, may be taken under the power of eminent domain. But in order that the power may be exercised in a particular instance, it must be granted in express terms, or by necessary implication: Appeal of Groff et al., 128 Pa. 621; Groff v. Turnpike Co., 144 Pa. 150.
    July 14, 1909:
   Opinion by

Head, J.,

The respondent in this proceeding is a railroad company duly incorporated under the laws of this state. It owns, and through its lessee, operates a line of railroad in a busy and populous section of the commonwealth. A portion of its line is carried over the Susquehanna river by a bridge owned by it. This bridge was built by its 'predecessor in title, under the authority of the Act of June 14, 1873, P. L. (1874) 421, which authorized that company, inter alia, “to connect their property on the opposite sides of the Susquehanna river .... by the construetion of a bridge for railroad, wagons, and other purposes, and to charge toll for the use thereof.”

The bridge was so built that the several legislative purposes might be subserved, at least to some extent. It appears to be undisputed, and the court so finds, that the tracks of the railroad company occupy the entire bridge, and consequently when the bridge is in actual use for railroad purposes, the general traveling public are necessarily excluded therefrom. When not in actual use for railroad purposes, the bridge is open to the public generally for the other purposes mentioned in the act, and the respondent charges toll to those who thus use it.

The petitioners, conceiving that this was a bridge which the county was authorized to “acquire” under the provisions of the Act of May 8, 1876, P. L. 131, filed their petition in the court of quarter sessions of Luzerne county, averting “that said bridge is necessary for the accommodation of the traveling public, and that the tolls collected for the use of said bridge are burdensome to the traveling public;” and praying'“that said toll bridge shall be taken as a county bridge,” and that viewers be appointed “to assess the damage, if any, which the said corporation shall sustain by the taking of the same.”

The respondent filed an answer denying that under the facts disclosed by the petition and answer, of which there is no dispute, the petitioners had any legal right to proceed with the proposed condemnation. The learned court made an order refusing “to appoint viewers or proceed further with this petition,” and the petitioners take this appeal.

One of the reasons specifically advanced by the respondent to induce the action taken by the court below was that the act of 1876 was not intended to, and does not operate upon a railroad bridge in the actual use of a railroad company, even under the unusual circumstances incident to the construction and use of this particular bridge. If this contention be sound the case of the petitioners must fall and there will be no occasion to examine or consider the effect of the former action of the court on a similar petition signed by other citizens.

We do not think the solution of the exact question now before us requires us to consider or determine some of the broad questions so ably presented in the appellant’s printed brief. As we view the case, we are not concerned with the question whether or not the state has power to condemn a part of the right of way of a railroad company, for the purpose of subjecting it to other forms of public travel. The answer to the question before us, we think, can be found in an examination as to what the state, by its legislation, has done, rather than by an investigation of the things which the exercise of its sovereign power might enable it to do. For it is clear enough that if the act of 1876 did not intend to confer upon a county the right to take a bridge under the conditions presented by this record, the action of the court below was correct.

The pith and marrow of the question now before us are contained in the first contention stated by the appellant’s counsel in their printed brief in the following language: “That the railroad company holds this bridge in a dual character — that of a railroad company for the purpose of transferring freight and coal thereon — and as a bridge company for the use of the travr eling public, with power to charge tolls thereon. Then the act of 1876 applies only to the right of user as a toll bridge for the general traveling public.”

To the first part of this contention we readily accede. There is authority for saying that where such a dual relation exists, and the rights of the railroad company in the bridge, turnpike or highway are yet potential rather than actual, while the other franchise of taking tolls for passage over such bridge or highway is alone in activity, the law has provided a means by which such franchise can be taken over by the county, and the highway thus made free for ordinary travel as against the franchise of the company to take toll therefor. By the act of June 2, 1887, a method was provided by which the proper county could take over for public use, and make free from tolls and tollgates, any turnpike, road or highway, the county paying the necessary damages to the owners thereof.

In Phila., etc., R. R. Co.’s Appeal, 120 Pa. 90, it appeared that a duly incorporated railroad company had become, by purchase, the owner of a section of a turnpike road, for the purpose of utilizing it at some time in the future as a part of its roadbed to enable it to obtain entrance into the city of Philadelphia. Until the time was ripe for the construction of such railroad, the turnpike was maintained as it had been as an ordinary public highway, and the railroad company, by viz*tue of legislative authority, continued to take tolls from those who passed over it. A proceeding was begun under the act of 1887, supra, to open this road to public travel. The railroad company objected that the act quoted did not intend that there should be taken from a railroad company a portion of its right of way in order to establish thereon a highway for ordinary travel. In disposing of that question, the Supreme Court, speaking through Mr. Justice Paxson, used this language: “The answer to this is that they (the railroad company) hold this portion of the road in a dual character: first, as a railroad company for the purpose of laying down its tracks thereon; and second, as a turnpike company for the purpose of collecting tolls. It is only as to the use last stated that these proceedings are directed. The petitioners az’e not seeking to interfere with the right of the company to extend its tracks over the road, nor could such a proceeding be entezdained under the act of 1887. We think the appellants are needlessly alarmed at the effect of the action of the petitioners. It can result only in making it a free road until such time as the appellants are ready to lay down their tracks, when, if they show a legal right to so appropriate the road, it is difficult to see how this proceeding can affect them.” If this language zneans anything, it must mean that had the railroad company then been in the active exercise of its potential right to lay and operate railroad tracks along that highway, the road, under such conditions, would have been removed from the class of roads on which the act of 1887 intended to operate, and the proceeding would have been nugatory.

We must recur then to the peculiar conditions incident to the bzidge in question. The objects which the legislature had in view in authozizing its construction wez’e, in the order named in the act, railroad purposes, wagon travel, and other purposes. As already stated, it has been so constructed and used as to subserve these various purposes, apparently in the order of impozdance in which they were viewed by the legislature. Are we then warranted in saying with the learned counsel for the appellant that the act of 1876 applies only to the right of user as a toll bridge for the general traveling public? We may concede that the legislature could, had it chosen to do so, have enacted a law by which a county could purchase and take over a partial interest in the bridge of a railroad company and extinguish any franchise such company might have to take tolls for such use, leaving to the company the right to control and use the bridge, as its public obligations might require, for railroad purposes. We cannot agree that the act of 1876 conferred, or was intended to confer, any such right. The act is entitled, “An Act to authorize the acquisition by the several counties of this Commonwealth, for the use of the county, of bridges,” etc. The bridges that may be acquired under the act are those of “any turnpike road company, bridge company, or other corporation.” How should we construe the expression “or other corporation”? If we say with the appellant that it means every other corporation of any kind or description, the previous qualifying expressions, to wit: “turnpike road company, bridge company,” become entirely meaningless and are given no effect whatever. Moreover, as we shall presently indicate, such a construction of the expression read into the entire body of the act would produce a state of confusion which it is hard to believe the legislature contemplated. Still further, it is to be observed that the two kinds of companies specifically mentioned are those maintaining a public highway devoted only to travel of the ordinary character, and not previously dedicated to public use for a special kind of travel. On the other hand, if we apply the rule of ejusdem generis so that the expression would practically read “or other like corporation,” then we are able to give meaning to all of the language used by the legislature and can read the entire act as a harmonious whole. The act further provides, inter alia, that the damages which are to be assessed as the price or value of the bridge to the owners “shall be payable out of the county treasury, and the said bridges shall be taken possession of by the county commissioners and shall thenceforth be declared to be county bridges.”

These provisions, and indeed the whole structure of the act, seem to us to clearly declare that the legislature contemplated no divided ownership or control of such a bridge between the county and the railroad company. If the right of the company to own, to use, and to operate that bridge in discharge of its charter obligations to the state cannot be acquired and taken over by the county, this bridge is not within the purview of the act of 1876. When a bridge, in contemplation of the act, is acquired by the county it passes into the sole possession and control of the county. The money of the public paid to the former owner is the price of that ownership and is to be accepted in lieu of it. The county is not authorized to enter into a partnership or become a tenant in common with a railroad corporation in the use, ownership and control of a county bridge. There is no provision in the law for a division of the responsibility which comes with the right to own and the duty to maintain a bridge for public travel.

The responsibilities which the law imposes upon common carriers of freight and passengers are so weighty that they could not be successfully discharged if the duties of maintenance, repair and regulation of travel over a bridge like that in question were to be divided between a railroad cpmpany and a quasi municipality like a county. It would be easy to present many illustrations of the impracticable conditions that would result and the consequent dangers that would flow therefrom to the public, if we were to hold that the bridge in question was a proper subject of partial condemnation by the county under the act of 1876, but it would needlessly prolong this opinion.

For the reasons we have attempted to suggest, we conclude that the learned court below was right in refusing “to appoint viewers or proceed further with this petition.”

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


author: Rice, P. J.,

text:
    Commonwealth v. Klein, Appellant.

      Criminal law — Grand jury — Investigation of bribery — Action of court on its own motion — Witnesses—Subpoma.
    1. A criminal court may of its own motion, or at the suggestion of the district attorney, direct the grand jury to investigate charges of bribery and corrupt solicitation, and direct that subpoenas may issue to witnesses to testify in behalf of the commonwealth in such an investigation.
    2. In such a case a subpoena is sufficient which commands the witness to appear before the grand jury at a specified hour, day and place “to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of councilmen in the city of Pittsburgh in our said court depending, and then and there to be tried between the commonwealth and a person or persons unknown:” Hartranft’s App., 85 Pa. 433, distinguished.
    3. A witness summoned under such a subpoena cannot refuse to go before the grand jury on the ground that he cannot be compelled to criminate himself. He is bound to obey the summons, and if at the investigation he is asked a question which violates his constitutional rights, he may then refuse to answer and have the question touching his rights as a witness disposed of in a legal and orderly manner.
    4. Where in such a proceeding the witness refuses to appear he may be both fined and imprisoned for contempt.
    Argued April 19, 1909.
    Appeal, No. 188, April T., 1909, by defendant, from order of Q. S. Allegheny Co., March T., 1909, No. 23, imposing fine and imprisonment for contempt of court in case of Commonwealth v. John F. Klein.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Attachment for contempt. Before Davis, P. J.
    From the record it appeared that on March 12, 1909, the following suggestion was made to the court of quarter sessions:
    W. A. Blakeley, district attorney of Allegheny county, respectfully represents:
    1. That at the February Sessions, 1909, of the court of quarter sessions of Allegheny county, certain indictments were tried, charging the defendants, inter alia, with bribery, corrupt solicitation and conspiracy to defraud the city of Pittsburg. That these trials resulted in the conviction of W. W. Ramsey of corrupt solicitation and bribery, and John F. Klein of bribery, and John F. Klein, William Brand and J. C. Wasson of conspiracy, and a plea of nolle contendere to the crime of corrupt solicitation and bribery was entered by one A. A. Vilsack.
    2. That at the trial of said causes, the testimony indicated that money had been paid by banks in the city of Pittsburg, in addition to the bank named in said indictments, for their selection as city depositories, and that open and extensive bribery and corruption had been practiced in the passage of the ordinance relating to the selection of bank depositories, as well as ordinances relating to many other matters which had been before and received the consideration of council. That testimony was also given to indicate that in and about the influencing of members of council to obtain their vote for the passage of the bank depository ordinance, moneys, in various amounts, were paid to eighty-eight councilmen, and further, that other moneys were paid to councilmen for their votes and support of a certain filtration deal.
    3. That it has been publicly asserted in the public prints of the city of Pittsburg and elsewhere, that bribery had been resorted to in securing the passage of ordinances vacating streets in said city, to wit: ordinance relating to the vacation of South Seventh street, the vacation of Home street, the vacation of Auburn street, the exoneration of certain persons from sewer assessment, of water rents, the vacation of land on the north side of Rose street, the purchase from Chas. O. Lappe of certain property, and the passage of two ordinances providing for the improvements of Rose street.
    4. It has further been publicly asserted and is common talk upon the streets and in business houses in said city that bribery and corruption was used to secure the passage of divers other ordinances and to prevent the passage of divers other ordinances.
    5. That the mayor of the city of Pittsburg, Honorable George W. Guthrie, has publicly asserted that he is in possession of evidence relating to councilmanic graft and corruption in the city of Pittsburg.

      6. That the district attorney of Allegheny county has no power to summon witnesses before the grand jury, or to investigate the same by placing witnesses in possession of information in regard to said alleged bribery and corruption, under oath, nor has he legal authority to submit the matters to the grand jury for their investigation, the said matters pointing to general corruption and bribery and not to the guilt of any one particular person.
    7. That the said W. A. Blakeley, district attorney, believes the above matters are public notoriety and are of such a nature, if true, as to affect the body corporate at large rather than any individual, and recognizing his inability under the law to satisfactorily and thoroughly investigate the said public matters, he deems it his duty to submit this suggestion to the court in order that the court, if convinced that the matter is of public notoriety and import and affects the public rather than the individual, may make such order in the premises with reference to submitting the matter to the grand jury as to it shall seem best and proper, both under the circumstances and the law.
    The court made the following offer:
    And now, to wit: March 12, 1909, the within petition presented in open court and upon due consideration thereof, it is ordered and directed that the said petition or suggestions be filed, and the district attorney be authorized to proceed with the investigation prayed for, and also be empowered to issue such subpoenas or processes as may be necessary to compel and procure the attendance of such witnesses who may in the judgment of the district attorney be competent to give evidence relevant to matters under investigation.
    Subsequently the following subpoena was -issued and served on John F. Klein:
    “Allegheny County, ss: Harry M. Merit.
    “ The Commonwealth of Pennsylvania. To Vm, Velte, G. W. Heppenstall, Harry P. Dilworth and John F. Klein, greeting:
    “We command you, that laying aside all business and excuses whatsoever, j^ou and each of you be and appear in your proper person before our Grand Jury, at Pittsburg, there to be held for the county aforesaid forthwith on the 16th day of March, a. d. 1909, at 9:30 o’clock a. m., to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of councilmen in the City of Pittsburg in our said Court depending, and then and there to be tried between the Commonwealth and a person or persons unknown, defendant on the part of the Commonwealth. And herein fail not, under the penalty of one hundred pounds.”
    Klein refused to appear before the grand jury on the ground apparently that he was not obliged to testify to matters which would incriminate himself. An attachment was issued against him, and he was adjudged guilty of contempt of court and sentenced to pay a fine of $100, and undergo an imprisonment of thirty days.
    Subsequently on a writ of habeas corpus from the Superior Court, Klein was permitted to enter bail in the sum of $2,500, pending the hearing of the appeal.

      Errors assigned were the issuance of the subpoena, the issuance of the attachment, the conviction for contempt, and the sentence to fine and imprisonment.

      Marrón & McGirr and John S. Robb, Jr., for appellant.
    The lower court was without jurisdiction to summon appellant to appear before the grand jury then inquiring in the county of Allegheny for the purpose of compelling him to testify to bribery and solicitation of bribery, and that the inquiry then being made by the grand jury was not a “lawful investigation or judicial proceeding ” under sec. 32, art. Ill, of the constitution of Pennsylvania.
    The subpoena in this case was not lawful: Hartranft’s App., 85 Pa. 433; Com. v. Smith, 185 Pa. 553.
    The court had no jurisdiction to fine and commit.

      Warren I. Seymour, with him William A. Blakeley and Robert T. McElroy, for appellee.
    The court of quarter sessions had jurisdiction of the subject-matter.

      Appellant was guilty of contempt of court in refusing to appear before the grand jury: Lloyd & Carpenter’s Case, 3 Clark, 188; Com. v. Dietrich, 7 Pa. Superior Ct. 515; Com. v. Hurd, 177 Pa. 481; Com. v. Smith, 185 Pa. 553.
    The subpoena was a proper subpoena: Hale v. Henkel, 201 U. S. 43; O’Hair v. People, 32 Ill. App. 277; Feree v. Strome, 1 Yeates, 303; Com. v. Bell, 145 Pa, 374; Com. v. Roberts, 2 Clark, 340; Kelley’s Election Case, 200 Pa. 430.
    The sentence in this case was proper: Com. v. Perkins, 124 Pa. 36; Williamson’s Case, 26 Pa. 9.
    July 14, 1909:
   Opinion by

Rice, P. J.,

1. After describing the ordinary mode of instituting criminal proceedings, namely, by warrant of arrest founded on probable cause, supported by oath or affirmation, followed by a hearing before a committing magistrate, Judge King said: “It is the fitness and propriety of the ordinary mode of criminal procedure, its equal justice to accuser and accused, that render it of almost universal application in our own criminal courts and make it unwise to depart from it, except in special circumstances, or pressing emergencies:” Lloyd’s Case, 3 Clark 188. This statement of the general rule recognizes the possibility of special circumstances or pressing emergencies which will justify resort to one or the other of the extraordinary modes of criminal procedure which Judge King then went on to describe: “The first of these is where criminal courts of their own motion call the attention of grand juries to and direct the investigation of matters of general public import, which, from their nature and operation in the entire community, justify such intervention. The action of the courts on such occasions, rather bears on things than persons, the object being the suppression of general and public evils, affecting, in their influence and operation, communities rather than individuals, and, therefore, more properly the subject of general than special complaint; such as great riots that shake the social fabric, carrying terror and dismay among the citizens; general nuisances affecting the public health and comfort;’ multiplied and flagrant vices tending to debauch and corrupt the public morals and the like. In such cases the court may properly, in aid of inquiries directed by them, summon, swear” (the oath may now be administered by the foreman of the grand jury) “and send before the grand jury, such witnesses as they may deem, necessary to a full investigation of the evils intimated, in order .to enable the grand jury to present the offense and offender.” This extraordinary power is to be exercised sparingly, with great caution and only when special circumstances or pressing emergencies require it for the suppression of general and public evils, affecting in their influence and operation communities rather than individuals. It is nevertheless apparent from the foregoing statement of the rule, as well as from the cases in which the exercise of the power has been held not to be an abuse of the sound judicial discretion vested in the criminal courts, that the power is not confined to cases of great riots or general public nuisances, but extends to the investigation and suppression of such general public evils as were given in charge to the grand jury in the present case. The nature of the subject of the investigation, and the special circumstances which moved the court to order it are sufficiently set forth in the suggestion filed by the district attorney, the order of the court thereon and the return of the grand jury, and need not be enumerated here. It is enough to say that the occasion for the exercise of this extraordinary power was much more urgent than in Com. v. Hurd, 177 Pa. 481, and was equally as plain as in Com. v. Dietrich, 7 Pa. Superior Ct. 515, in each of which cases the action of the court was sustained. We conclude, therefore, that the proceeding in which the defendant was called to testify was a lawful proceeding.

2. The subpoena served on the defendant commanded him to appear before the grand jury at a specified hour, day and place “to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of eouncilmen in the city of Pittsburg in our said court depending, and then and there to be tried between the commonwealth and a person or persons unknown, defendant on the part of the common-wealth. And herein fail not under the penalty of one hundred pounds.” We cannot agree with counsel for appellant that the same defects appear in this subpoena as in the subpoena referred to in Hartranft’s Appeal, 85 Pa. 433. The defect or defects in the subpoena in that case were thus pointed out by Justice Gordon: “It sets forth no case, present or prospective, nor does it state for whom, or at whose instance, the defendants were to be subpoenaed. As this writ is a very arbitrary one, obliging the citizen to leave his home and abandon his business, however important it may be, and give his attendance at court, wherever that may be sitting, it is very important to know what parties are entitled to it; for if it be issued at the suit of one having no right thereto, it is no contempt to disobey it. The commonwealth may have this process in any proceeding where its interest is apparent, whether as a suitor or a prosecutor, and so may parties in courts, either civil or criminal; but we have yet to learn that any such right exists in a court, in its mere character as a court, separated from the case which it has in hand. So this, as well as every other compulsory process, must show upon its face that it was issued for some person or party having a right thereto, otherwise it is nugatory and void, and disobedience to its mandate involves no penalty whatever. In the case before us, there was the use of the writ of subpoena, as a mere order of the court, without statement of party or case, commanding the defendants to appear before the grand jury, for the purpose of giving their testimony touching the late riots.” In the same connection Justice Gordon said that no doubt the court might have directed a subpoena to issue for the commonwealth in any case where the commonwealth was a party, “ or where it was apparent it was in some way interested in some case or transaction then depending.” Here the case or proceeding in which the defendant was to testify was set forth in the subpoena as clearly as from its nature was possible ; it is apparent on the face of the subpoena that if the commonwealth was not technically a party against a named defendant, it was a party against the unknown persons the investigation was intended to discover, or, to say the least, was vitally interested in the matter then depending; and it is also apparent that the appellant was to testify in behalf of the commonwealth in that investigation. We entertain no doubt that it was a lawful subpcena and that he was not at liberty to disobey it because of any supposed defects of form.

3. We are not disposed to go into an elaborate discussion of the question whether under the circumstances set forth in the appellant’s petition to quash the attachment he could claim the privilege to refuse to answer questions that might incriminate him, because the time for claiming that privilege, if he had it, had not arrived. He refused to go before the grand jury to testify to any matter, and it is apparent that he might have been asked questions the answers to which would not have affected him prejudicially in any way. In Eckstein’s Petition, Yard’s Appeal, 148 Pa. 509, it was held, that under the provisions of the act of June 1,1885, each branch of councils in cities of the first class was given power to compel the attendance of witnesses, and that upon the issuing of a subpcena it was the duty of the person summoned to appear in reponse to the summons and be sworn as a witness, and that he could not refuse to appear and be sworn on the ground that he was already under indictment for alleged criminal connection with the matters which the committee proposed to investigate and that the answers to questions propounded to him might tend to prejudice him in the criminal proceedings then pending. The court said: “The investigation which was in progress before the councils was a lawful investigation. The subpcena was lawfully issued, and it was his duty to obey it. Upon his refusal to do so, it was lawful for the court of common pleas to compel such obedience. It cannot be tolerated for a moment that a man may be allowed to disobey a lawful subpcena upon his mere opinion that the subpoena had been improperly issued, or that the particular tribunal before which he was summoned to appear has no jurisdiction to proceed. It was time enough for the appellant to have raised any objection after he had obeyed the subpoena, and been sworn as a witness. If a question had then been asked which tended to criminate him, or which was in violation of any of his rights as af citizen, under the constitution and laws of this commonwealth, he could have dedined to answer the same, and any question touching his rights as a witness could have been disposed of in a legal and orderly manner.” Having determined that the proceeding in which the appellant was summoned and subsequently directed to testify was a lawful proceeding, and that the process was lawful, the same principle is applicable here.

4. The suggestion that the contempt of the appellant was only punishable by fine, cannot be sustained. In Com. v. Gibbons, 9 Pa. Superior Ct. 527, affirmed in Kelly's Contested Election, 200 Pa. 430, it was held that where a person refused to answer questions propounded to him by examiners in a contested election, and appeared in open court and made answer to a rule to show cause why he should not be attached for contempt, and, in his answer, refused to obey an order which had been made upon him to appear before the examiners and answer the questions, the offense was committed in open court. This would seem to be conclusive of the question before us. See also as to punishment by imprisonment Com. v. Bell, 145 Pa. 374, and Com. v. Perkins, 124 Pa. 36.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county to the end that the sentence be fully carried into effect.


text:
    In re Klein.
    July 14, 1909:
   Opinion by

Rice, P. J.,

This writ was issued as ancillary to the appeal in the case of Commonwealth v. Klein, ante p. 352, and all the questions arising upon it have been determined in that case.

And now, to wit: July 14,1909, the petitioner, John F. Klein, is remanded to the custody of the warden of the Allegheny county prison to serve out so much of his sentence as had not expired at the time this writ was issued, and the appeal in No. 188, April Term, 1909, was made a supersedeas.


text:
    Arms Pocket-book and Leather Novelty Co. v. Posey, Appellant.

      Principal and surety — Bond—Stay of execution — Laches.
    1. Where a person becomes surety before a justice of the peace on a bond for a stay of execution, he cannot after a delay of nine months from the time when judgment was entered against him, on an appeal then taken from such judgment be heard to aver that he was misled by the misrepresentations of the justice, where he offers no proof of any facts from which it could be inferred that the justice was in any way the agent of the plaintiff.

      Corporations — Foreign corporations doing business.

    2. An affidavit of defense in an action in which plaintiff was a foreign corporation is insufficient which merely avers, without the statement of any facts, that the plaintiff was a foreign corporation doing business illegally in this state.

      Principal and surety — Stay of execution — Bankruptcy.
    3. The surety on a bond for stay of execution cannot allege as a defense to his liability that the original debtor had become a bankrupt within four months after the date of the rendition of the original judgment against him, and under which the bond had been given to stay the execution.
    Argued April 28, 1909.
    Appeal, No. 160, April T., 1909, by defendant, from order of C. P. No. 1, Allegheny Co., June T., 1909, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Arms Pocket-book and Leather Novelty Company v. C. W. Posey.
    Before Rice, P. J., Pontee, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Rule for judgment for want of a sufficient affidavit of defense. Before Ford, J.
    The opinion of the Superior Court states the case.

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

      L. C. Barton, for appellant.

      Alvin A. Moms, with him William A. Way and Albert J. Walker, for appellee.
    July 14, 1909:
   Opinion by

Head, J.,

Although the record — composed as it is of a number of petitions, answers, appeals and proceedings collateral to the main issue — -presents an aspect at first blush somewhat confusing, yet neither its length nor apparent complications can obscure the few basic facts upon which the liability of the present appellant rests.

The plaintiff began an action against one Klein before an alderman of the city of Pittsburg for the recovery of a debt less than $300, and in due course obtained a judgment. The defendant in that judgment, being a freeholder, claimed the right to have a stay of execution. This right could be exercised only on compliance with the statutory requirement. To fulfill this requirement he induced the present appellant to appear before the magistrate where he entered into a recognizance “in the sum of $525 as bail absolute in double the amount of the judgment, conditioned for the payment thereof in event of defendant’s failure to pay at the expiration of stay of execution, viz.: nine months.” He further stated under oath as a part of his recognizance that he was the owner of real estate valued at $10,000, with an incumbrance of $2,000 against it. The original defendant thus obtained the benefit of the stay of execution for the period of nine months. At the expiration of that period, the debt not having been paid, and the debtor having become a bankrupt, a scire facias on the recognizance was issued by the magistrate, at the instance of the plaintiff, and the appellant duly summoned. He failed to appear, and the plaintiff, having made the necessary proof, was awarded a judgment on the recognizance. Shortly afterwards the appellant appeared before the magistrate and demanded a transcript for an appeal to the court of common pleas. The magistrate being of the opinion that under such circumstances he was not entitled to an appeal, refused it. An application was thereupon made to the court of common pleas and a writ of alternative mandamus obtained, whereupon a transcript issued and the appellant, having paid the costs, filed the transcript in court and thus his appeal was perfected. The plaintiff filed its statement of claim and the defendant his affidavit of defense, and a rule for judgment for want of a sufficient affidavit was taken out by the plaintiff.

On the same day on which the appellant, now the defendant, took his appeal, he also filed with the magistrate a petition setting forth that he had entered into recognizance under the impression that he was merely becoming bail for the costs on an ordinary appeal by Klein from the original judgment, having been, as he alleges, misled therein by the statement of Klein as well as of the clerk of the magistrate. The alderman refused the prayer of this petition and from that order the defendant again appealed to the common pleas where his appeal was pending at the time the court made absolute the rule for judgment for want of a sufficient affidavit of defense. It was from the latter judgment that the present appeal is taken.

The learned counsel for the appellant frankly admits that if in such case a recognizor became bound through a mistake for which the plaintiff was not responsible, that fact would be no defense to an action on the recognizance. It will be observed from what has been already stated that the defendant is a man of considerable property. He is presumably a man of ordinary intelligence, able — certainly in the absence of any averment to the contrary — to read and understand the obligation he executed.

The original affidavit of defense and the petition and supplemental petition of the defendant in support thereof set forth four grounds of defense. The first ground, to wit: that he mistakenly became bail absolute when he only intended to become surety for the payment of the costs, we understand to be practically abandoned. If it was not, the case of Clark v. McComman, 7 W. & S. 469, and the long line of cases following it, furnish ample authority for the conclusion of the court that this ground of defense availed nothing.

In the attempt to avoid, as we understand it, the force of these decisions, which rest to some extent at least on the ground that the plaintiff was in no way responsible for such mistake, the defendant undertook to aver that the alderman was the agent of the plaintiff, and as a consequence we suppose the latter was to be bound by the misrepresentation of the magistrate or his clerk, if any such were made. To this allegation the court answered correctly that it amounted to nothing but the averment of a conclusion. Apart from the fact that the alderman, sitting as a justice of the peace, tried the case and awarded a judgment to the plaintiff, no single fact is averred upon which this conclusion could rest.

It is again sought to be set up as a ground of defense that the plaintiff is a foreign corporation and was doing business illegally in the state of Pennsylvania. Again the court correctly answers as follows: “The averment is merely a conclusion of law. The facts upon which defendant relies in support of his assertion that the plaintiff was doing business in the state of Pennsylvania should be stated with reasonable certainty. There is no averment as to when or how the plaintiff was doing business, nor that the indebtedness sought to be recovered against Klein was any part of such business transacted in this state.”

Finally, it was contended that because the original debtor had become a bankrupt within four months after the date of the rendition of the original judgment against him, upon which this appellant became surety, the judgment became void, and therefore the liability of the surety was at an end. It is so manifest that this contention rests upon a misapprehension of the effect of the adjudication in bankruptcy, as well as of the obligation of the recognizor, that no discussion is needed to show that this ground of defense was worthless.

As long as the record remained before the magistrate, this appellant-had the right to file his petition for the purpose of having any error of fact corrected, or in other words, for the purpose of having that record so amended as. to make it speak the truth according to the actual facts. He did nothing for the period of nine months, during which the stay of execution he had brought about was operative. When the action oi scire facias was begun and he was duly warned, he failed to appear or make any defense. Even after judgment had gone against him, he could still have properly made his application to the magistrate. He at the same time had the statutory right to take his appeal to the common pleas, remove the record there, and have his cause adjudicated on the merits by that tribunal. He elected to exercise that right and called to his aid the power of the court to enforce it. He thus removed the record from the magistrate'to the court, and his cause was to be tried de novo in the tribunal of his choice. He has had his day in that court. He has had abundant opportunity to exhibit any defense to the claim of the plaintiff, but has been able to show none. We think, therefore, the learned court was right in making absolute the rule for judgment. The assignments of error are overruled.

Judgment affirmed.


author: Orlady, J.,

text:
    Wade, Appellant v. Pittsburg Machine Tool Company.

      Landlord and tenant — Covenant to repair — Necessary repairs.

    1. Where a lease contains a covenant on the part of the tenant to "make all necessary repairs at his own proper costs and charges,” and the landlord during the term of the lease, after notice from the city authorities repairs certain rain conductors on the building, which the tenant had refused to repair, and the evidence as to the necessity for the repairs is conflicting, it is for the jury to determine their necessity.
    2. In such a case the trial judge committed no error in charging that the covenant meant “such repairs as may be necessary to protect the house from waste and ruin.”
    Argued April 28, 1909.
    Appeal, No. 161, April T., 1909, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 1,004, on verdict for plaintiff in case of Francis Henry Wade v. Pittsburg Machine Tool Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover money paid for repairs. Before Frazer, P. J.
    The facts appear by the opinion of the Superior Court.
    Plaintiff presented these points:
    1. The verdict of the jury should be for the plaintiff. Answer: Refused. To which answer counsel for plaintiff except. [1]

      3. The tenant is bound to make the repairs ordered by the department of public works, and if he refuses to do so the landlord may make same and recover the amount from the tenant. Answer: Refused. To which answer counsel for plaintiff except. [2]
    The court charged the jury in part as follows:
    [Now, under this agreement we say to you as a matter of law that it was the duty of the defendant to make certain repairs to the house, that is, he was obliged to make necessary repairs, and by “necessary repairs” we do not mean only such repairs as would keep the building in tenantable condition for the use of this defendant, but it means more than that: it means such repairs as may be necessary to protect the house from waste and ruin. A man might permit the gutters and spouting of a house to get out of repair and allow the water to fall down upon the outside of the house, without inconvenience to himself, and by so doing the house may be considerably injured. Now, it is repairs of that kind that the tenant must make under a clause of this kind.] [3]
    [Now, in this case the questions involved here are questions strictly, it seems to me, for the jury: that is, whether a repair is necessary, is, under the circumstances, a question for the jury to determine. All questions of law are determined by the court; but questions of fact are solely for the jury, and this a question of fact, and you gentlemen must determine that question of fact from the testimony of the different witnesses.
    [Before verdict rendered counsel for plaintiff and defendant respectively except to the charge of the court and request that the stenographer’s notes thereof be reduced to writing and filed.] [4]
    [The plaintiff’s contention is that upon receiving notice from the authorities of the city of Allegheny to the effect that the property needed some repairs, he gave notice to the defendant, to the proper officer of the defendant company, Mr. Curtis, that these repairs had been required by the city, and asked him to make them, and also stated if he did not make the repairs, that is, if the defendant did not make the repairs, the landlord would make them and at the expense of the tenant. The tenant not having made the repairs, the landlord went upon the premises, or sent a tinner there, and repaired some spouting and some gutters upon the house, and for that he incurred an expense of $119.17. This was in November, 1904. A little later, in the spring, in March, 1905, he again sent the tinner to the house, and at that time some repairs were made in the roof. I believe he testified that there was some 125 large slate put on the roof and some smaller ones, I do not recall, twenty-five or thirty smaller ones, and for that a charge is made of $23.65, the two items together making the amount of the plaintiff’s claim of $142.82.
    Now, you gentlemen must determine from the evidence whether these repairs, whether the doing of either or both, the making of either or both of these repairs, was reasonably necessary for the protection of the house, for the protection of the property; and if they were, then, as I said a moment ago, as a matter of law, the defendant was liable for this, and he ought to have made them, and if he did not make them, then the plaintiff had the right to have them made and to charge the cost to the tenant.
    Now, you will take up both of these items, consider them with the testimony, and if you find that the spouting was necessary, you will render a verdict in favor of the plaintiff for that amount; and if you find the roofing was necessary, then he would be entitled to recover both of these items. If you find that either of them was not necessary, then, of course, the plaintiff would not be entitled to recover for that particular item.] [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      F. C. McGirr, of Marron & McGirr, for appellant.
    Under the evidence in this case we believe the court should have instructed the jury to find for the plaintiff the amount he paid for repairs to the spouts and conductors, because there was no question that they had become in such a bad state of repair that it was absolutely necessary to make the repairs: Cornell v. Vanartsdalen, 4 Pa. 364; Loughlin v. Carey, 21 Pa. Superior Ct. 477; Darlington v. DeWald, 194 Pa. 305.

      W. N. S. Thomson, of Thomson & Thomson, for appellee.
    June 14, 1909:
   Opinion by

Orlady, J.,

The plaintiff leased to the defendant company a factory for a term of five years. The lease contained the following provision: “The tenant will make all necessary repairs at his own proper costs and charges, without abatement of said rent, and at the expiration of the term aforesaid shall and will yield up the said premises in as good and sufficient repair as when received (reasonable wear and tear and accident by fire and other causes excepted) without any further notice from the said parties of the first part.”

During the term of the lease the superintendent of the bureau of highways, etc., of the city, notified the plaintiff and the defendant that the rain conductors on the building were rotten from the top to the bottom, and that they must be repaired at once and have a proper sewer connection. The plaintiff then notified the defendant to make the repairs, which the defendant refused to do, and thereupon the plaintiff repaired the waterspouts and conductors and roof at an expense of $142, and this action was brought to recover the said sum from the tenant under the clause of the lease above quoted.

The testimony in regard to necessity for the repairs was conflicting. Witnesses for the plaintiff testified that these defects were such as should be made promptly. Defendant’s witnesses testified that they were not. The question resolved itself into a mixed one of law and fact, and as such it was properly submitted to the jury. The first and third points of the plaintiff as submitted implied that the verdict should be directed in favor of the plaintiff. The responsibility of the tenant to the landlord does not depend solely on the notice received from the department of public works. The public official may or may not be right, but the liability of the tenant depends upon the conditions existing at the time the property was leased, and the conditions as they exist at the expiration of the lease, many of which may not be necessarily known by the representative of the city.

The third assignment of error is to the following: “We say to you, as a matter of law, that it was the duty of the defendant to make certain repairs to the house, that is, he was obliged to make necessary repairs, and by necessary repairs we do not mean only such repairs as would keep the building in a tenant-able condition for the use of this defendant, but it means more than that; it means such repairs as may be necessary to protect the house from waste and ruin. A man might permit the gutters and spouting of a house to get out of repair and allow water to run down upon the outside of the house without inconvenience to himself, but by so doing the house may be considerably injured. It is repairs of that kind, that the tenant must make in a clause of this kind.” And in the fourth assignment, “The questions of fact here it seems to me are for the jury. That is, whether a repair is necessary, is, under the circumstances, a question for the jury to determine; all questions of law are determined by the court, but the questions of fact are solely for the jury, and this is a question of fact, and you must determine that question of fact from the testimony of the witnesses whether these repairs were reasonably necessary for the protection of the house, for the protection of the property; and if they were, then, as a matter of law, the defendant was liable for them and he ought to have made them, and if he did not make them, then the plaintiff had the right to have them made and to charge the costs to the tenant.” Which was a fair and proper submission of the case. The assignments of error are overruled. The judgment is affirmed.


author: Beaver, J.,

text:
    Commonwealth v. Swartz, Appellant.

      Evidence — Photograph—Identification.
    1. In a criminal ease where the issue turns upon the impersonation of one person by another, a photograph of the person alleged to have been impersonated may be identified by the wife of such person, who was present when the latter received the photograph as coming from the photographer. In such a case identification by the photographer is not necessary. The testimony of any one familiar with the original and with the photograph and a correct likeness of the original, is competent to prove such a likeness.

      Criminal law — Evidence—Self-crimination—Waiver of constitutional privilege — Letter.
    2. Where a prisoner in a criminal prosecution voluntarily goes upon the stand and testifies as to matters of defense, he waives his constitutional privilege of keeping silence, and he may be cross-examined in the same manner as any other witness. If he produces a letter and reads only one of two signatures appended to it, and he is directed by the court to hand the letter to the district attorney, and the existence of the second signature then appears, the court cannot be convicted of error in directing the production of the letter, although the existence of the second name was a fact strongly incriminating the prisoner.

      Appeals — Assignment of error — Two distinct subjects.

    3. An assignment of error embracing two distinct subjects will be disregarded.
    Argued May 13, 1909.
    Appeal, No. 43, Oct. T., 1909, by defendant, from judgment of Q. S. Lehigh Co., June Sessions, 1908, No. 23, on verdict of guilty in case of Commonwealth v. A. E. Swartz.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy. Before Trexler, P. J.
    At the trial it appeared that A. E. Swartz, the defendant, had been surety for one Elmer Frey, or Elmer Freeman. There was evidence that Swartz had employed one William Lawson by payments of money to impersonate and take Frey’s place at the trial, and that Frey impersonating Lawson was convicted and served a term of imprisonment. Other facts appear by the opinion of the Superior Court.

      Verdict of guilty, upon which the prisoner was sentenced to pay $500, and -undergo an imprisonment for one year.

      Errors assigned were in the following form:
    1. The court erred in overruling the objection, by the defendant, to the offer of the district attorney for the commonwealth of the photograph as follows, to wit:
    Mr. Gemerd: I ask that this photograph be offered in evidence.
    The Court: It will be received for the present, but won't go to the jury yet.
    Mr. Dewalt: The defense objects.
    The Court: The defense objects to the admission of the photograph, the objection is overrúled; and for them a bill is sealed.
    2. The court erred in overruling the objection to the question put to Jonathan Frederick, a witness for the commonwealth, as follows, to wit:
    “Q. Who is that individual (showing photograph to witness)? A. Well, he looks to me — ”
    Mr. Dewalt: We object to this as incompetent and irrelevant.
    The Court: Objection overruled, bill sealed for the defendant.
    “Q. Who is that? A. He resembles the Elmer Fry, alias Elmer Freeman, who was tried in this court for perjury.''
    3. The court erred in overruling the objection to the questions put to A. E. Swartz, the defendant, by the district attorney on cross-examination as follows, to wit:
    “Q. Did he make any request of you for money, Mr. Swartz, after he went back to Wilkes-Barre?”
    Mr. Dewalt: This is objected to as not cross-examination.
    The Court: Objection overruled; bill sealed for the defendant.
    “Q. April the 18th, he sent a letter for money; prior to that time, Mr. Swartz, did you receive any mail from him? A. No, sir.”
    4. The court erred in overruling the defendant's objection to the questions to A. E. Swartz, defendant, on cross-examination by the district attorney, and in requiring the production of a letter in the hands of the defendant as follows, to wit:

      “Q. Well, you say you received letters from him? A. I received one from Boswell. Q. What does that letter say? ”

    Mr. Dewalt: This is objected to.
    The Court: The objection is sustained for the reason that if the defendant has the letter in his possession the commonwealth can have it.
    Mr. Dewalt: You will not surrender any documents in your possession until you are advised to do so by your counsel.
    The Court: The defendant says he has the letter in his possession; the court advised him to give the letter to the attorney of the commonwealth. To this advice of the court the defendant's attorney excepts, and for him a bill is sealed.
    • The letter was then given to the district attorney who read it to the witness.
    5. The court erred in overruling the motion of the defendant to strike from the record certain testimony as follows, to wit:
    Mr. Dewalt: Counsel for defendant moves at this time that all testimony in regard to a letter alleged to have been sent from Lawson to Swartz be stricken from the record as incompetent and irrelevant, as there is no proof in the commonwealth's case, the commonwealth not having shown that there was any response to that letter from Swartz, nor any act in consequence of such correspondence.
    The Court: Swartz was interrogated about the registered letter received and gave his explanation of the same, and the matter was presented without objection at the time. The objection is overruled, bill sealed for the defendant.
    6. The court erred in admitting in evidence the alleged photograph of Elmer Fry; and the letter of April 18, 1908, given by the defendant under the advice of the court. ,

      A. G. Dewalt, with him Jacob S. Dillinger and John L. Schwartz, for appellant.
    Photographs of persons and of handwriting are in the nature of secondary evidence, and should not be admitted in evidence in the absence of proof that the original cannot be produced: Udderzook v. Com., 76 Pa. 340; Beardslee v. Columbia Twp., 188 Pa. 496.
    Declarations by some of the alleged conspirators after the object of the combination has been attained, or it has been dissolved, as to what was agreed, or what was done, could affect them only and not their alleged co-conspirators: Heine v. Com., 91 Pa. 145; Wagner v. Haak, 170 Pa. 495; Miller v. Harvey, 215 Pa. 103.
    The appellant further contends that the court committed error in requiring the defendant, whilst on cross-examination, to deliver to the district attorney the letter of April 18, 1908: Patterson v. Wyoming Dist. Council, 31 Pa. Superior Ct. 112; Horstman v. Kaufman, 97 Pa. 147.

      Fred B. Gernerd, district attorney, for appellee.
    The following Pennsylvania decisions which appear to embrace the law upon this phase of evidence, do not make it imperative that the photographer should verify the photograph before its reception as evidence: Udderzook v. Com., 76 Pa. 340; Com. v. Connors, 156 Pa. 147; Beardslee v. Columbia Township, 186 Pa. 496; Com. v. Keller, 191 Pa. 122; Buck v. McKeesport, 223 Pa. 211.
    The cross-examination conducted by appellee concerning the letter dated April 18,1908, and the registered letter receipt was not improper: Com. v. Stanley, 19 Pa. Superior Ct. 58; Com. v. Kay, 14 Pa. Superior Ct. 376.
    Having waived his constitutional privilege to keep silent, the prisoner cannot give testimony which makes in his favor, and then object to legitimate cross-examination, upon the ground that his answers will tend to criminate him: Com. v. House, 6 Pa. Superior Ct. 92; State v. Witham, 72 Me. 531; State v. Thomas, 98 N. C. 599; Connors v. People, 50 N. Y. 240; Com. v. Nichols, 114 Mass. 285; Com. v. Tolliver, 119 Mass. 312; see also 9 Cr. L. Magazine, 306; State v. Ober, 52 N. H. 459.
    July 14, 1909:
   Opinion by

Beaver, J.,

The defendant was indicted for conspiracy with one William Lawson, to personate Ehner Frey, alias Elmer Freeman, who had been convicted of perjury in the court of quarter sessions of Lehigh county, in order that the said Lawson might “ receive, serve and comply with whatever sentence said court might impose upon the said Elmer Frey, alias Elmer Freeman, whose person said William Lawson was. then and there to falsely represent and personate,” etc.

In the course of the trial a photograph of Elmer Frey, alias Elmer Freeman, was offered in evidence. The first and second assignments of error relate to the offer of this photograph, although at the time it does not seem to have been received unconditionally by the court, the remark being made, “It will be received for the present but won't go to the jury yet,” this qualification being made presumably for the reason that it had not at that timé been identified to the satisfaction of the court. The objection, as argued by the appellant, is that it had not been, and was not during the trial, properly identified, in that the testimony of the photographer who took it was not taken, in order to identify it. This, however, we take it is not necessary. The identification was by the wife of Elmer Frey, who knew him intimately and was present when he received the photograph, as coming from the photographer, and was not only familiar with the original but with the picture as well. She was perfectly competent to make the identification.

Photographs are recognized in Udderzook v. Com., 76 Pa. 340, as an established means of producing a correct likeness, Mr. Chief Justice Agnew, who delivered the opinion, saying: “It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art, and this in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness.” The testimony of anyone familiar with the original and with the photograph as a correct likeness of the original is undoubtedly competent to prove such a likeness. This is shown in Com. v. Keller, 191 Pa. 122, in which it was held: “On the trial of an indictment for murder a full length photograph of the deceased is admissible to rebut testimony that the prisoner was a smaller man than the deceased, where the witness, who identifies the photograph and testifies to its accuracy, is represented in it, standing by the side of the deceased.”

So in Com. v. Connors, 156 Pa. 147: On the trial of one of the several defendants indicted for the larceny of money from a bank, it is proper to admit in evidence the photograph of one of the other defendants, when properly identified by a witness who had seen the original, to prove the fact, in connection with other testimony, that defendants stole the money while the original of the photograph occupied the attention of the bank officer.”

This general question is discussed in 17 Cyc. 414, based upon the Pennsylvania cases already cited and many from other jurisdictions: “Photographs and pictures, it is said, stand on the same footing as diagrams, maps, plans, etc., and, as a general rule, whenever it is relevant or important to describe a person, place or thing, in either a civil or criminal case, photographs or pictures are admissible for the purpose of explaining and applying the evidence in a cause and assisting the court or jury in understanding the case. This kind of evidence has sometimes been referred to as secondary evidence, and sometimes as demonstrative evidence. The photographs must be shown by extrinsic evidence to be true and faithful representations of the place or subject as it existed at the time involved in the controversy. The photograph, however, need not be verified by the oath of the photographer taking it; the foundation for its introduction may be laid by anyone who testifies to its correctness as a representation or likeness.”

The identification was clearly sufficient and, in our opinion, the evidence was properly received.

The appellant argues that “the third, fourth, fifth and sixth assignments of error raise two important questions in the administration of ci'iminal justice. The appellant complains that the court permitted proofs of acts done and declarations made by William Lawson, the coconspirator, to go in evidence, although such acts were done and the declarations were made by William Lawson, the alleged coconspirator, subsequent to the completion and consummation of the alleged conspiracy. The conspiracy had been fully consummated, according to the theory of the commonwealth, and the allegations of the first count of the indictment on which the defendant was convicted upon William Lawson’s completion of the prison sentence of Elmer Frey. The court permitted evidence, subsequent to that time, to be given of the fact of the sending of a registered letter by William Lawson to the defendant; and also the sending of a letter by William Lawson to the defendant, in which he, William Lawson, demanded from the defendant, the payment of money as the share that was due him in the furtherance of the said former alleged conspiracy. That such testimony was improperly admitted and afterwards illegally submitted to the jury, as evidence, is decided by numerous authorities. It is contrary to the enunciated doctrine of eminent writers of textbooks and the uniform decisions of the judges of this and other states.”

The principle for which the defendant contends is founded in reason and sustained by abundant authority, but his difficulty is that his assignments of error do not raise this question. The testimony, of the admission of which he complains, was offered by himself, not for the purpose of establishing the conspiracy, of course, but for the purpose of breaking down the testimony of the coconspirator, who was the witness of the commonwealth, and destroying his credibility, and it was only in response to the introduction of his own testimony, for the purpose of sustaining the credibility of Lawson, the commonwealth’s witness and the coconspirator of the defendant, that the testimony of which he complains was admitted. He not only has himself to blame for the admission of the testimony, but the use of the letter to which he refers when introduced was unfair, in that it called the attention of the defendant to but a single signature instead of the two which were attached to it, being the real name of the witness Lawson and also the name of the criminal whom he impersonated, in o'rder to receive his sentence and serve the imprisonment which was a part of the sentence. Nowhere in the record is there any intimation that there was any offer of testimony subsequent to the carrying out of the terms of the conspiracy to establish the fact, and a careful reading of the testimony furnishes abundant evidence of the fact that the defendant himself laid the groundwork for all that he complains of in his third, fourth and fifth assignments of error.

The appellant also contends that his constitutional privilege, in regard to giving evidence against himself, was invaded, because the court directed him to hand the letter of April 18, 1908, to the commonwealth’s counsel, and he was interrogated in regard thereto after the letter was read to him by the district attorney. The defendant went upon the stand voluntarily and in his examination he was shown the letter by his attorney and asked in regard to the signature thereto. This was important, in view of the cross-examination of the commonwealth’s witness Lawson, and the counsel for the commonwealth was necessarily concerned in regard to the signature. When request was made for the letter, which it is said the defendant held in his hands, he was directed by his counsel not to hand it over, without his direction. The court advised him, however, to hand it to the district attorney, which he did. The wisdom and importance of this was immediately apparent-, for the letter was signed William Lawson and below, at a different place, Elmer Freeman Frey. The examination of the district attorney was strictly cross-examination as to a subject concerning which the defendant had been examined by his attorney. As we said in Com. v. House, 6 Pa. Superior Ct. 92 (at p. 107): “A defendant in a criminal case cannot be compelled to testify, and under our statute no inference can be drawn from, nor comment be made on, his failure to do so. But by consenting to take the stand, and swearing to tell the truth and the whole truth, he waives his constitutional privilege, and may be cross-examined in the same manner as any other witness. There is this difference, however, between an ordinary witness, and a defendant testifying in his own behalf: the former goes upon the stand by compulsion, the latter voluntarily. Having waived his constitutional privilege to keep silent, he cannot give testimony which makes in his favor, and then object to legitimate cross-examination, upon the ground that his answers will tend to criminate him.” It is objected here that the district attorney, upon receiving the letter from the defendant, read it to him. No objection, however, was made to it at the time, and we cannot see that the defendant was specially injured thereby. The important question concerning the letter was the manner in which it was signed and, whilst the fact in relation thereto bore hardly against the defendant, he has himself to blame fo.r it, for in his examination in chief, he told but half the truth in regard to it and, under the circumstances of the case, it was as deceptive as if it had been an entire and absolute untruth. The court committed no error in directing the defendant to hand the letter to the district attorney, and as to the use made of it there was no objection at the time and there is no exception on the record.

The sixth assignment is contrary to our rule XIY. It embraces two distinct subjects, and for this reason is disregarded. What is complained of, however, is disposed of in the other assignments of error, which relate to the same subjects.

It is to be said also that, at the close of the case, after the defendant rested, in response to “The commonwealth offers in evidence the photograph of Elmer Frey; also letter,” there was not a word of objection on the part of the defendant, nor is there any exception; but, as we have already stated, we are abundantly satisfied that the photograph was well identified and that the letter, the admission of which is complained of, was properly in the hands of the commonwealth for such use as was proper, because it was introduced by the defendant himself. For this reason, also, the seventh assignment of error is overruled.

The case was well tried. The rights of the defendant were not invaded nor in any way curtailed. The jury evidently believed the testimony of the commonwealth, and a conviction properly and necessarily followed.

Judgment affirmed and record remitted to the court below, in order that the sentence may be fully executed.