text:
    Commonwealth v. Kloss, Appellant.

      Election law — Election officers — Failure to deliver returns to prothonotary — Neglect of duty — Act of January 30, 1874, P. L. 31.
    1. A conviction of an election officer for neglect of duty in not delivering election returns to the prothonotary as provided by the Act of January 30, 1874, P. L. 31, will be sustained, where the evidence shows that the returns in question were not on file in the office of the prothonotary, that the defendant delivered the returns to a person who met him in the hall of the courthouse, with the statement that he was a clerk of the prothonotary, that the defendant made no attempt to ascertain the name of the alleged clerk either at the time or afterwards, and that there had been an attempt on the part of some persons to commit a fraud by substitution of forged returns from the district represented by the defendant.

      Criminal law — Indictment—Form of verdict.

    2. Where an indictment contains several counts involving numerous charges, it is proper for the court to submit to the jury a form of verdict to be rendered in ease the defendant should be acquitted or convicted.

      Appeals — Assignments of error — Improper remarks of counsel.

    3. An assignment of error to improper remarks of counsel does not comply with the rule, if it does not set forth the remarks and the action of the court with reference thereto.
    Argued Oct. 19, 1908.
    Appeal, No. 19, March T., 1909, by defendant, from judgment of Q. S. Luzerne Co., Jan. T., 1907, No. 91, on verdict of guilty in case of Commonwealth v. William Kloss.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for not delivering election returns to prothonotary. Before Staples, P. J.
    Verdict of guilty upon which the defendant was sentenced to pay a fine of $200.

      Errors assigned were in the following form:
    1. The court erred in refusing to quash the indictment.
    2. The court erred in charging the jury as follows: “He testified that he delivered it to a man who said he was a clerk in the prothonotary’s office. Now we instruct you, gentlemen of the jury, that, that did not meet the requirements of the law. The law required that he should deliver that triplicate return to the prothonotary and when he delivered it to a man who simply stated he was a clerk, or clerk of the prothonotary, that did not meet the requirements of the law and you can find nothing else. With regard to that question there is no alternative, because it is the man’s own story. The law requires that he should deliver it to the prothonotary and this man was not even a deputy prothonotary, and it does not matter whether it was the prothonotary’s office, because the act of 1839 provides for delivering to the prothonotary’s office and the legislature changed that and made it the prothonotary.”
    3. The court erred in charging the jury as follows: “The delivery to the clerk was not sufficient and we say to you, gentlemen of the jury, that under that statement of fact you ought to find that this defendant was guilty of neglect of duty, if you do not find that he was guilty of willful fraud, neglect of duty in not delivering the triplicate return to the prothonotary.”
    4. The court erred in charging the jury as follows: “If you should find him guilty of all the counts, and not guilty of neglect of duty, — but the court does not see how it is possible for you to do that, — you are to dispose of the costs.”
    5. The court erred in submitting a form of verdict to the jury which contained the following words: “As to the thirteenth count of the indictment we find the defendant guilty.” [1]
    February 26, 1909:
    6. The court erred in refusing to withdraw a juror after improper remarks had been made to the jury by the special district attorney in his closing argument.

      John M. Garman, with him B. R. Jones, Frank A. McGuigan, and James H. Shea, for appellant.
    The act of receiving the returns was purely ministerial on the part of the prothonotary, and could be delegated: Scola’s Case, 8 Pa. C. C. Rep. 344; Boso’s Application, 6 Kulp, 83; Reigart v. McGrath, 16 S. & R. 65; Com. v. Finney, 17 S. & R. 282; Kershner v. Stoltz, 1 Pa. C. C. Rep. 72.

      John H. Williams, with him John McGahren, for appellee.
   Opinion by

Henderson, J.,

This case was argued with Commonwealth v. John Havrilla, ante, p. 292, and arises out of a similar state of facts. The first assignment involves the validity of the indictment and is the same question considered and disposed of in the Havrilla case against the position of the appellant.

The second and third assignments bring up a part of the charge relating to the delivery of the election returns as required by the Act of January 30,1874, P. L. 31. The argument of the learned counsel for the appellant would have much force if it appeared from the evidence that there had been a delivery of the returns to a deputy or clerk in the prothonotary’s office, but no such defense is set up. The commonwealth offered evidence that the returns brought in by the defendant were not on file in the office. From that evidence the jury would have been justified in at least convicting the defendant of neglect of duty. The evidence for the defendant does not relieve him from this charge. The most favorable view of it is that late in the afternoon, after having spent a considerable part of the day in saloons where he was drinking with some companions, he went to the courthouse with three other judges of election who had been with him during the day; there he met a man in the hall who said: “What do youse want? I said, We are judge of election. He said, You are kind of late coming around. I told him we were here in the morning but place was so full we couldn’t get around. He said, I will help you out. He said, I am a clerk here, he said, I will take your returns, he says, come in here. I went in office there and give them to him. Q. What office was that? A. I think it was the first office on the other side as you go in right alongside prothonotary’s office. Q. What did you do when you got in there? A. He give me a book and told me to sign my name on that book. I signed my name. I asked him about the pay. He said couldn’t give us the pay to-day, couldn’t get it, but he gave me a note. I took that away. Told me I could get the pay any time. . . . Q. Who was the man you gave the papers to? A. I wouldn’t be able to tell him if I saw him. He was a short, dark-complected man. Q. Was there any other conversation between you and him as to who he was? A. No, he just told me he was a clerk there. Q. Clerk of what? A. Prothonotary’s office.”

On cross-examination the defendant testified that he did not ask the alleged clerk his name, and stated that he had not made any inquiry to find out what his name was. No one of the persons accompanying the defendant was called to testify for the defense, nor was any effort made to show that the person to whom the defendant delivered the returns was in any way employed by the prothonotary. The commonwealth’s evidence showed an attempt on the part of some persons to commit a fraud on the election by the substitution of forged returns from the district represented by the defendant, and it was in the light of the uncontradicted evidence that the court gave the instruction contained in the second and third assignments. In view of the evidence we think the court was not in error in instructing the jury that they should convict the defendant of neglect of duty, if not of willful fraud. The charge did not amount to binding instruction, and it is too well settled to be open for discussion that the trial judge may express his opinion on the evidence if done in such a way as not to take the case from the jury.

The fifth assignment is without merit. The indictment con-tamed thirteen counts involving numerous charges, and it was entirely proper for the court to submit to the jury a form of verdict to be rendered in case the defendant should be acquitted or convicted.

The sixth assignment is not in accordance with the rule of court. It does not set forth the remarks attributed to the special district attorney, nor the action of the court with reference thereto.

The exceptions are overruled and the judgment affirmed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Chambersburg Borough v. Chambersburg Gas Company, Appellant.

      Boroughs — Openings in streets — Ordinance—Gas companies.

    1. A borough has the right in the exercise of its police powers to regulate, inspect and supervise the introduction and maintenance under its streets of the pipe lines of a duly incorporated gas company, and to impose a reasonable charge to reimburse it for the probable expense of such inspection and supervision.
    2. In determining whether such charges are proper, the primary presumption is that the borough officers act in good faith, exercise their best judgment, and have regard only to the purpose for which an ordinance may lawfully be enacted. Their power is not, however, absolute, their action being reviewable by the courts.
    3. In an action by a borough to recover charges for opening a street, the borough is not required to show the cost of supervision and inspection in the presentation of its case in chief, where there is nothing to indicate upon the face of the ordinance fixing the charges that the borough had enacted it for revenue purposes in the guise of police regulation. The burden is upon the defendant to establish by evidence that the charges are clearly unreasonable, and the ordinance for the reason invalid.
    4. In an action by a borough to recover from a gas company charges imposed by ordinance for making openings in highways, it appeared that the ordinance provided a charge of fifty cents for the introduction of service pipe, and a charge of $5.00 per 100 feet for an extension of a gas main. The amount claimed for service pipe was $157 and for extension of mains $322.70. The evidence showed that the city clerk who issued the permits received a salary of $15.00 per month, but no particular sum for the mere issuing of permits. The police force of the borough, consisting of a chief and four policemen, received salaries amounting to $231 per month, They inspected the openings made by the defendant, but no particular part of their salaries was designated as compensation for this work. The employees of the defendant company testified that the amount of time and work required for the inspection was trifling. Held, that a verdict and judgment for the borough for the whole amount claimed should be sustained.
    5. A municipality in fixing license fees for opening streets may make the charge large enough to cover any reasonably anticipated expense, and the payment of the fee cannot be avoided because it may subsequently appear that it is somewhat in excess of the actual expense of the supervision.
    6. In an action to recover charges for opening a street, evidence is properly rejected to the effect that there were other ordinances which imposed an annual license fee upon the poles and wires of telegraph and telephone companies and electric railways within the municipal limits, and also evidence as to the gross income collected by the municipality under such ordinances.
    7. In such a case it is proper to take into consideration as bearing upon the difficulty and expense of inspection the fact that in making excavations in a street it was necessary to do much blasting, and that it was difficult to so fill the ditches that they would not subsequently require refilling.
    Argued Oct. 20, 1908.
    Appeal, No. 75, Oct. T., 1908, by defendant, from judgment of C. P. Franklin Co., Dec. T., 1907, No. 136, on verdict for plaintiff in case of The Burgess and Town Council of Chambersburg Borough v. Chambersburg Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover charges for openings made in streets. Before Gillan, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial when John F. Etchberger was on the stand, the following offer was made:
    We propose to prove by this witness and by the ordinance book of the borough of Chambersburg that there are certain ordinances of this borough which impose upon every telegraph and telephone company within the borough limits, and upon every electric railway company, or other railroad company, a license fee or tax of so much annually for each pole within the borough, and for each mile of wire, and this to be followed by evidence to show that within the borough of Chambersburg there have been and now are erected considerably over 1,000 poles, the exact number not being known to counsel for defendant, and a great many miles of wire. This offer being made for the purpose of showing what would be the reasonable cost of inspection, if any were needed, for inspecting the trenches and openings made by the defendant company.
    Mr. Hoerner: The offer is objected to because there is no ground of comparison between the offer to prove and the acts regulated by the ordinance upon which this suit is brought; that this lack of ground of comparison exists not only as between concrete objects of poles on the one hand, and excavations in the streets on the other, but more particularly does the lack of comparison exist in the acts of assembly and ordinances of the borough which control the license fee in the matter of poles and wires, as against those acts of assembly and ordinances of the borough which control the lawfulness of license fees in the excavations of the street, and is irrelevant and immaterial.
    The Court: To admit the evidence would lead us to consider a collateral matter, and we cannot go into it; it is for that reason and for the reason that the evidence is wholly irrelevant and immaterial, that the objection is sustained, the evidence rejected and bill sealed for the defendant. [4]
    Mr. Bowers: Defendant now offers to prove by this witness and others the number of public service corporations to which the ordinance of June 24,1905, applies, together with the public utilities used by the corporations and other persons, who come under the provisions of that ordinance, simply for the purpose of showing the gross income which would be derived by the borough from and by means of the enforcement of the provisions of that ordinance. This, for the purpose of showing that this income would not only very grossly exceed in cost the number of the supervisions contemplated by the law, but would pay the salaries of the whole police force of the borough and leave money besides. This for the purpose of showing that the provisions of that ordinance are unreasonable; and that it is not a police regulation, but a revenue measure.

      Mr. Hoerner: The offer is objected to. First, in so far as it purports to prove the persons and natures of the corporations subject to the provisions of this ordinance, because the ordinance itself specifies what persons shall be subject to it. Second, that the offer, as to its remainder, is wholly irrelevant and immaterial.
    The Court: The objection is sustained, the evidence rejected and bill sealed for the defendant. [5]
    Verdict and judgment for plaintiff for $479.70. Defendant appealed.

      Errors assigned amongst others were (2) in refusing judgment non obstante veredicto and entering judgment on the verdict; (4, 5) rulings on evidence, quoting the bill of exceptions, and (3) in not submitting to the jury the question whether the ordinance was reasonable or not.

      W. K. Sharp, of Sharp & Elder, and O. C. Bowers, for appellants.
    -The charges imposed by the ordinance for the permits arc police regulations and can be sustained only on that ground. If the charges are so great in amount as to be disproportionate to the expense to which the borough may be put by reason of inspection and supervision and by reason of the issuing of the permits, then such charges are excessive and the ordinance becomes a revenue measure and is void: Kittanning Borough v. Natural Gas Co., 26 Pa. Superior Ct. 355; Pottsville Borough v. Gas Co., 33 Pa. Superior Ct. 480.
    The learned court below, in view of the testimony, should not have directed a verdict in favor of the plaintiff but should have at least submitted the question of the reasonableness of the ordinance as a question of fact to the jury.
    The cost of inspecting other public utilities, to wit: wires and poles, trenches and openings, even if the borough had performed its full duty, could not have exceeded a fair proportion of the total salaries paid to the police force. The plaintiff borough contended that proper inspection was made by its police officers as part of their duties, and it was admitted by the plaintiff that this inspection was sufficient. If we had been able to show that the license fees received under the various ordinances taxing these public utilities would have been sufficient to have paid the salaries of the entire police force it seems to us quite apparent that we would have established our contention that the ordinance was unreasonable and void.
    February 26, 1909:

      William S. Hoerner, with him Isaac Wingert, borough solicitor, J. D. Ludwig and T. Z. Minehart, for appellee.
    The point of view from which both the court below, as well as the appellate court, should approach the question, is not, is this particular ordinance reasonable, but, is it unreasonable: Kittanning Borough v. Gas Co., 26 Pa. Superior Ct. 355; Johnson v. Philadelphia, 60 Pa. 445; Chester City v. Tel. Co., 154 Pa. 464; North Braddock Boro. v. Tel. Co., 11 Pa. Superior Ct. 24; Philadelphia v. American Union Tel. Co., 167 Pa. 406; Taylor Borough v. Postal Tel. Cable Co., 202 Pa. 583.
    The most noticeable fact in considering the attitude of the court toward ordinances similar to this, is that no ordinance governed by the same statutes as the one in suit has as yet been declared unreasonable by the courts of appeal of Pennsylvania because of the amount of the license fees charged; the legislative bodies of the different municipalities have been allowed to exercise and enforce their discretion in the matter: Landsdowne Borough v. Water Co., 16 Pa. Superior Ct. 490; Springfield Water Co. v. Darby Borough, 199 Pa. 400; Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480; Kittanning Borough v. Nat. Gas Co., 26 Pa. Superior Ct. 355.
    The reasonableness of this ordinance should be decided upon a consideration of it as a whole, but if any part of it should appear to the court to be reasonable, and other parts unreasonable, and it is possible to separate the reasonable from the other parts, in so far as it is reasonable, the ordinance should be sustained: Appeal of the City of Pittsburg, 115 Pa. 4; Commissioners of Northern Liberties v. Gas Co., 12 Pa. 318; Landsdowne Borough v. Water Co., 16 Pa. Superior Ct. 490; Appeal of Borough of Verona, 108 Pa. 83; Com. v. Jackson, 34 Pa. Superior Ct. 174.
   Opinion by

Porter, J.,

The borough brought this action of assumpsit to recover of the defendant the charges imposed upon persons or corporations, who made openings in the highways or the streets of the borough, under the provisions of an ordinance approved June 24, 1905. The ordinance required all persons who desire to make openings within the limits of any highway of the borough to first obtain from the chairman of the street committee of the borough a permit authorizing the same. The charges imposed for such permit, so far as they are relevant to this case, are as follows: “For a permit to open a highway for ... . the introduction of a service pipe the sum of fifty cents; for a permit to open a highway for the extension of a gas or other main, five dollars ($5.00) per hundred feet, or fractional part thereof on highways that are macadamized; and for a permit to open a highway for any other purpose the sum of fifty cents.” The second section of the ordinance required all openings made in macadamized highways, between the curb lines, for the extension of gas or other mains, or for the introduction of service pipes, to be closed under the direction and supervision and to the satisfaction of the chairman of the street committee of the borough. The defendant company declined to take out the permits and the borough, waiving the penalty imposed by the ordinance, brought this action of assumpsit to recover the amount which the defendant company would have been required to pay for the permits. No objection was made to the form of the action and the only question raised in the court below was as to the power of the borough to impose the charges. The defendant company did not deny that it had made in the streets openings for the introduction of 314 service pipes, the charges for which imposed by the ordinance would amount to $157, and it admitted that it had made extensions of its mains in the macadamized streets of the borough amounting in the aggregate to a trifle over 6400 feet, the charges for which under the ordinance would be $322.70.

The right and duty of the borough, in the exercise of the police power, to regulate, inspect and supervise the introduction and maintenance under its street of the pipe lines of a duly incorporated gas company and to impose a reasonable charge to reimburse it for the probable expense of such inspection and supervision, cannot be questioned: Borough of Kittanning v. Kittanning Consolidated Natural Gas Company, 26 Pa. Superior Ct. 355; Borough of Kittanning v. Consolidated Natural Gas Company, 219 Pa. 250. The only question to be determined at the trial in the court below was whether the borough in the enactment of this ordinance had exceeded the power with which it was by law invested. The defendant company contended that the charges imposed by the ordinance were excessive and unreasonable. The primary presumption is that borough officers act in good faith, exercise their best judgment and have regard only to the purpose for which an ordinance may lawfully be enacted, in fixing the amount; for that is their duty. Their power is not, however, absolute, their action being reviewable by the courts. The borough is not, in actions of this character, required to show the cost of such supervision and inspection in the presentation of its case in chief, for there was nothing upon the face of this ordinance which would have justified the court in holding that it had been enacted by the borough for revenue purposes in the guise of a police regulation. The burden was upon the defendant to establish by evidence that the charges were clearly unreasonable and the ordinance for that reason invalid. The character of the inspection and supervision and the period during which they are to be exercised, in order to protect the public interests, must necessarily vary with the circumstances and conditions under which an opening in a street is made. No positive rule, naming a fixed charge, can be laid down which would be applicable in any and all cases that may arise. “Necessarily any rule that may be adopted must leave some latitude for the exercise of the discretion of the borough officers. Unless this has been exceeded; unless the court is able to say from the facts of which it may take judicial cognizance, or from the undisputed or admitted facts, or if there be a conflict of evidence, then from the duly ascertained facts, that the ordinance is a revenue measure in the guise of a police regulation or that the license fee is grossly excessive of what was necessary to cover the reasonably to be anticipated expense of proper police supervision, it is not justified in interfering. Even if it be conceded that where there is a conflict of evidence, the controverted facts are to be determined by the jury, still, the burden of proof being on the defendant, the court cannot be convicted of error in giving bind ng instructions in favor of the borough where the defendant has not furnished evidence from which the jury could find facts which would justify the court in declaring the ordinance unreasonable. For it is to be borne in mind that this is not an action on a quantum meruit, and that where an ordinance is not unreasonable on its face, it is incumbent on one who alleges its invalidity upon the ground of its unreasonableness, to aver and prove the facts that make it so:,J Kittanning Borough v. Natural Gas Company, 26 Pa. Superior Ct. 355. It was in this case held that, in a case which presented no federal question, the tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, an ordinance is unreasonable, is the court.

The appellant contends that the court below should have held the charges unreasonable and the ordinance invalid because of what was disclosed by the evidence to have been actually done by the borough in the way of inspection and supervision. The evidence disclosed that the borough had adopted a system for the issuance of the permit, under which although the permit was granted by the chairman of the street committee the permit was actually issued by the city clerk. The city clerk was paid a salary of $15.00 per month for all services rendered in connection with his office, and received in addition a commission of three per centum on all collections made by him, the charges for these permits to open streets being included in said collections. No particular part of the salary of the clerk was designated as compensation for his services in issuing these permits. The police force of the borough consisted of a chief and four patrolmen and the testimony clearly established that it was a part of the duty of all these officers to inspect the streets and alleys of the borough, and that they were required to go over their beats twice a day and report all obstructions and defects in the public highways. It was shown that in some instances the police officers had found the ditches of the defendant company in a dangerous condition and had themselves placed lights at the work, to guard against accidents. The salaries of these officers amounted to $231 a month. The salary was not split up allowing them so much for each service they performed, and there was therefore no particular part of the salary designated as the compensation which was paid for the inspection of the ditches of this particular company. The evidence disclosed, in addition, that the members of the street committee of councils gave personal attention to the condition of the highways and to the condition of the openings made therein, and that complaints had been made by the members of the committee to this very company. It may here be observed that the ordinance imposed upon the chairman of the street committee the duty of supervising the closing up all trenches and the restoring the highway to its former condition. The contention of the appellant, upon this branch of the case, is that because the borough did not provide a separate organization and a special force for the discharge of its duty to supervise and inspect the openings made in the highways, that it must for that reason be held, to have expended nothing for such inspection. To show that this contention is unsouud it seems to be only necessary to refer to the opinion of President Judge Rice, in Kittanning Borough v. Gas Company, 35 Pa. Superior Ct. 167, where in reference to this very question we find this language: “While the policeman and street commissioners were not paid a specific sum, for the performance of these specific duties, it is a sufficient answer to the claim that the borough expended nothing therefor, to say that the compensation paid the officers, which was considerable in amount, was for all their services, including those rendered in carrying out the purposes of this ordinance.”

The defendant company called certain of its own employees who testified as to the manner in which their ditches were filled and the pre-existing conditions restored. These witnesses were of opinion that they did their work so well that no inspection or supervision whatever upon the part of the borough authorities was necessary. Some of these witnesses testified that they themselves continued to inspect the trenches for about a year after they were filled. Some of them testified that it was only necessary to inspect these trenches after each heavy rain, perhaps ten or fifteen times, and that the work could be done upon each occasion in three hours, and that a fair price for the work would be twenty cents an hour or sixty cents for each entire inspection. One of these witnesses said that a fair price for the inspection necessary during the entire period would be about $25.00, while two others said the amount would be from $20.00 to $25.00. The difficulty with the testimony of these witnesses was that they were not the parties upon whom the law cast the duty of determining what inspection and supervision was necessary, that was a matter for the corporate authorities to determine. The testimony amounted only to an assertion that the sum charged was larger than was necessary to compensate the borough for an inspection that could be made in a few hours. “But the charge is not merely for a periodical going over the line of the pipes to ascertain if there are any breaks, but a constant surveillance by the police officers,” during the entire period in which there is a reasonable probability that defects will develop in the street because the openings have been made: Kittanning Borough v. Water Company, 35 Pa. Superior Ct. 174. In the nature of things it is ordinarily impossible to determine in advance the exact cost of the future inspection and supervision; the municipality is therefore at liberty to make the charge large enough to cover any reasonably anticipated expense and the payment of the fee cannot be avoided because it may subsequently appear that it was somewhat in excess of the actual expense of the supervision: West Conshohocken Borough v. Conshohocken Electric Light & Power Company, 29 Pa. Superior Ct. 7.

The offer of the defendant to prove that there were other ordinances of the borough of Chambersburg which imposed an annual license fee upon the poles and wires of telegraph and telephone companies and electric railways within the borough was properly rejected. The borough was not seeking to charge the defendant under such an ordinance. The ordinance which the borough was seeking to enforce did not attempt to impose an annual charge on the pipes of the defendant in the street, but imposed a charge once for all time for openings actually made in the highways. The offer to prove “the number of public service corporations to which the ordinance of June 24th, 1905, applies, together with the public utilities used by the corporations and other persons, who come under the provisions of this ordinance, simply for the purpose of showing the gross income which would be derived by the borough from and by the means of the enforcement of the provisions of that ordinance,” was also properly rejected. The offer did not propose to furnish information as to the number of openings in the streets made, during the period in question, by the other public service corporations, nor whether such openings were made in the same highways used by this defendant, so that police inspection and supervision of the openings made by all the parties could be made at the same time: Kittanning Borough v. Gas Company, 35 Pa. Superior Ct. 167.

The evidence disclosed that in making excavations in the streets of Chambersburg it was necessary to do much blasting and that it was difficult to so fill the ditches that they would not subsequently require refilling. This rendered municipal supervision and inspection more necessary and difficult, and what was said in Kittanning Borough v. Natural Gas Company, 26 Pa. Superior Ct. 355, has peculiar application: “The learned judge below upon a view of all the facts in evidence and with better knowledge of the surrounding local conditions than we have, has determined that there was not sufficient evidence to warrant a finding that the ordinance is unreasonable. We have carefully re-examined the evidence in the light of the foregoing principles, and are not convinced that he ought to have held otherwise, or ought to have submitted the question to the jury.” The assignments of error are all overruled.

The judgment is affirmed.


author: Beaver, J.,

text:
    Williams v. Patterson, Appellant.

      Contract — Implied, contract — Board of horse — Mailing letters — Evidence.

    In an action to recover for the board of a horse for three years, the evidence showed that- the plaintiff had bought a stock farm and that the horse in question was on the farm when he took possession. It appeared that the defendant, who owned the horse, had directed the plaintiff’s predecessor to kill it, as it was worthless and suffering, but this had not been done. These facts were known to the plaintiff. The plaintiff testified that, after keeping the horse for a while, he sent a bill to the defendant, but he offered no evideñce of the contents of the bill, or that the bill identified the horse, so that the defendant would know that the plaintiff was keeping the horse. It also appeared that plaintiff knew that he was sending the bills to a wrong address, and also that the defendant had no knowledge of the plaintiff's purchase of the farm. Held, that the court should have given binding instructions for defendant.
    Argued Oct. 21, 1908.
    Appeal, No. 243, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 2,829, on verdict for plaintiff in case of Morris Williams v. Theodore Cuyler Patterson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for boarding a horse. Before Carr, J.
    The facts appear by the opinion of the Superior Court.
    The court charged in part as follows:
    [If you believe that Williams received the mare, intending to charge board and not knowing that Patterson believed it to be dead, and if you believe he sent the bills on July 1 and that Patterson had received them, of course, that would be a fact from which you could infer an implied contract that Patterson knew that the mare was alive and that he was responsible for its keep.] [3]
    [There are certain transactions in the law in which the implication can be made from that action that the addressee received the letter. If you believe he did not receive the letters, or bills, then you should find for him and not for the plaintiff.] [4]
    February 26, 1909:
    Verdict and judgment for plaintiff for $353. Defendant appealed.

      Errors assigned were (3, 4) above instructions, quoting them, and (5) in refusing binding instructions for defendant.

      T. C. Patterson, with him Jos. Gilfillan, for appellant.

      David Wallerstein, for appellee.
   Opinion by

Beaver, J.,

Plaintiff seeks, as set forth in his statement of claim, to recover from the defendant for the board of a brown mare from April 1, 1903, to April 1, 1906, at $12.00 per month. There is no allegation that there was- an express contract on the part of the defendant to pay the plaintiff for the board of this animal. The plaintiff’s statement shows the circumstances under which it was received by the plaintiff: “On April 1st, 1903, the plaintiff rented Erdenheim stock farm, Montgomery county, Pa., and purchased from John McCloskey estate the good will of the boarding business upon said farm. Among other horses turned over by John McCloskey estate, which had been at board with it for the plaintiff to board, was a brown mare of defendant’s, and the said mare had been boarded by the plaintiff at said farm from that time to the present, to wit, April 1st, 1906.”

It appears by the testimony of the defendant and of the executor of McCloskey that, prior to the sale by the McCloskey estate to the plaintiff of the lease and good will of the Erdenheim stock farm, the defendant had directed a certain black mare called Lillian, then kept by the McCloskey estate, to be killed, on the ground that she was worthless and was suffering. McCloskey’s executor testified that he did not kill the mare and had made no charge for her keep after the defendant’s directions to have her killed, and that he communicated these facts to the plaintiff. This is not denied in any way by the plaintiff.

It is testified by the plaintiff that, after keeping this mare for a certain time, he sent a bill for her keep to the defendant, addressed to Chestnut Hill. It is evident from all the testimony, not only of the defendant, but of the plaintiff as well, who sent a messenger or messengers to Chestnut Hill to ascertain whether or not the defendant lived there, that the defendant was not then living at Chestnut Hill. The plaintiff alleges that he sent bills addressed to Chestnut Hill every six months from April 1, 1903, until the year 1905, and that during that year he sent bills every month. What was contained in these bills is not shown, nor were the books of the plaintiff produced to identify in any way the amount or for what the bills were rendered, although he was requested at the trial to produce his books.

If we could assume, under the evidence, that the defendant had received the bills rendered by the plaintiff, did these bills convey to him the notice that his black mare Lillian was being kept and boarded by the plaintiff? The testimony does not show this. The plaintiff testifies, in answer to a question by the court, that, when he took the farm, he found there “a black horse, a black mare, with a long tail, called Lillian.” It is not shown by the testimony that the defendant had any knowledge of the sale of the lease and good will of the Erdenheim farm to the plaintiff. Assuming that the plaintiff sent the bills regularly, as he testified, and that the defendant received them, did they convey notice in any way that the plaintiff had succeeded to the care of the stock upon the Erdenheim farm and that his mare Lillian was being boarded by the plaintiff presumably at his expense, notwithstanding the fact that the defendant had directed the mare to be killed? If these facts had been clearly shown by the plaintiff and that he addressed a letter containing a bill giving the specific information necessary to acquaint the defendant with the facts above mentioned, it might be presumed, if the letter were addressed to the defendant’s proper post-office address, that he received such letter, and that the description of the mare and the fact that he was the keeper of the Erdenheim farm was contained therein, a contract to pay for the mare might have been implied. In the absence of such testimony, however, we are of opinion that there was not sufficient in the testimony of the plaintiff, or taking the testimony as an entirety, that there was any implied contract or sufficient testimony as to the facts necessary to create an implied contract, to submit the question to a jury.

It is true, as stated in Phœnix Brewing Co. v. Weiss, 23 Pa. Superior Ct. 519, that, “It is well settled that the fact of depositing in the post office a properly addressed prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail,” but it is clearly shown by the testimony of both plaintiff and defendant that the bills referred to were not properly addressed to the defendant’s post office. If they had been, would they convey to the defendant notice that the particular black mare which he had directed to be killed not only had not been killed, but that the plaintiff, with whom he had no contract for her keep, and as to whose tenancy of the Erdenheim farm, so far as appears by the testimony, he had no notice, had the mare in charge and expected him to pay for her board? In view of the failure of the plaintiff to deny the statement of McCloskey that the defendant had directed the mare Lillian to be killed and of his failure to show that the contents of his books and of the bills alleged to have been sent to the defendant, identified the mare which he kept as the defendant’s property, we think that both the third and fourth assignments of error, which relate to the charge of the court, should be sustained.

We are of opinion, also, that the court should have given binding instructions for the defendant for the same reasons. If it had been clearly shown that a bill, showing the plaintiff as the successor of the McCloskey estate in the lease and good will of the Erdenheim farm and clearly identifying the black mare Lillian as the one in his care and custody, being fed for and on account of the defendant, had been sent to the proper post-office address of the defendant, a prima facie case of an implied contract between the plaintiff and defendant might perhaps have been made out, so as to carry the question to the jury; but it is not necessary to decide that question inasmuch as it is not shown that the bill said to have been rendered by the plaintiff to the defendant put the latter upon notice that his instructions in regard to the killing of the animal named Lillian had not been carried out, and that the plaintiff was in any way in charge of her, so as to make it incumbent upon him to make inquiry in regard to the matter. We do not think, therefore, a case for the jury was established by the testimony of the plaintiff. A nonsuit might have been properly granted, the refusal to do which is not reviewable here; but, as we look at the case in its entirety, the defendant was entitled to binding instructions and, therefore, the fifth assignment of error is also sustained.

Judgment reversed.


text:
    Melville v. Philadelphia, Appellant.

      Contract — Municipal contract — Architect—Change of plans.

    Where a city agrees to pay a firm of architects a certain percentage on the cost of construction of a fire and ice boat, in consideration of their services in preparing the plans and specifications for the boat, the city cannot reduce the compensation agreed upon after the architects have done their work, by eliminating the fire features of the boat and thereby reducing its cost of construction.
    Argued Oct. 21, 1908.
    Appeal, No. 171, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,399, on verdict for plaintiff in case of George W. Melville and John H. MacAlpine, trading as Melville & MacAlpine, v. City of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a written contract. Before Willson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,112.87, on which judgment was entered for $681 all above that amount having been remitted. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      February 26, 1909:

      W. C. Wilson, assistant city solicitor, with, him Chas. E. Bartlett and J. Howard Gendell, city solicitor, for appellant,
    cited: Johnston v. Philadelphia, 113 Fed. Repr. 40.

      Paul C. Hamlin and William W. Porter, with them Herbert G. Stockwell, for appellee,
    cited: McManus v. Philadelphia, 211 Pa. 394.
   Opinion by

Beaver, J.,

The assignments of error raise but a single question: Was the defendant entitled to the affirmance of its point that, “Under all the evidence the verdict should be for the defendant,” which was refused, and, upon motion for judgment ri. o. v., should the court have granted it, the motion being refused and judgment entered upon the verdict?

The claim of the defendant is based upon a written agreement between the defendant and the plaintiffs, in and by which the plaintiffs were employed by the city defendant as “naval architects to draw all the plans and specifications for and supervise the construction” of an ice and fire boat, provision for which had been made by sundry ordinances of the defendant city, recited in the agreement aforesaid, “and to give general supervision and inspection of all the details of the construction, trials and tests, and also the materials and appliances used therein.” In consideration whereof it was agreed on the part of the defendant to pay to the plaintiffs “the sum of five per cent. (5) of the total cost of the said boat when fully completed, ready for use and accepted by the said party of the first part; provided, however, the sum to be expended under this agreement shall in no event exceed the sum of nineteen thousand dollars ($19,000.)”

The payments were provided for as follows: “For the making the necessary general plans for the said boat one (1) per cent. For preparing and writing the necessary specifications governing the construction, material and workmanship for the said boat one (1) per cent. These two items of one (1) per cent, each are to be made to the said parties of the second part on the date of the letting or awarding of the contract for the construction of the said boat, and the balance or remaining item of three (3) per cent, to be paid to the said parties of the second part on the completion of the said boat and its delivery to and acceptance by the said city of Philadelphia. All necessary surveys, measurements, necessary labor for the inspection and testing of material or appliances, and such other investigations as may be deemed advisable, to be provided ¡at the expense of the said party of the first part.”

Instead of two ice and fire boats, as provided in the ordinances of council, recited in the agreement between the plaintiffs and the defendant, the defendant determined to build but one.

It is admitted in the counterstatement of the defendant that the plaintiffs prepared plans and specifications for an ice and fire boat for the city of Philadelphia, the said boat-to cost $380,000. Such plans and specifications were prepared accordingly, delivered to the city and accepted by it in April, 1905. The',said plans and specifications were used by the city as a basis for bids made for construction of the boat and, on April 27, 1905, the city (acting in pursuance of a resolution of councils passed April 27, 1905) awarded to the William Cramp & Sons Ship & Engine Building Company the contract for construction of an ice and fire boat to be built in accordance with said plans and specifications, and to cost $380,000. The acceptance of the bid by William Cramp & Sons and the awarding of the contract to them it seems to us fixed the amount of the compensation to be paid to the plaintiffs, in accordance with their agreement with the city, namely, two per cent, which was to be paid them “ on the date of the letting or awarding of the contract for the construction of the said boat,” the contract price being the amount upon which the two per cent of compensation should be computed. As a matter of fact, the defendant did pay to the plaintiffs the full amount of two per cent upon the $380,000, the amount of the contract price to be paid to the William Cramp & Sons Ship & Engine Building Company. The plans and specifications embrace the machinery and its arrangement necessary for a fire as well as an ice boat. Afterwards, as the defendant alleges in its counter-statement, on July 22, 1905, the city gave notice to the plaintiffs that the fire outfit would be eliminated in the construction, so that the boat would be constructed as an ice boat merely. The fire feature was to have cost $30,000, and hence its elimination reduced the cost of the boat to $350,000. The elimination of the fire outfit in the boat did not eliminate the work done by the plaintiffs in making the plans and specifications, of which the fire feature was an important, and to some extent controlling, element, but the change presumably increased their work by requiring the elimination of the fire apparatus from the plans and a readjustment of the machinery. But upon the final settlement with the plaintiffs the city deducted $600 from the sum which had been originally paid as an overpayment and credited it upon the remaining three per cent of the total final cost of the said boat, when fully completed, ready for use and accepted by the city. This payment was accepted by the plaintiffs expressly on account and without prejudice to their claim for a balance which they alleged to be due them, and it was for this balance that the present suit was brought.

We are of opinion that the trial judge in the court below was justified in saying in his charge to the jury: “The city voluntarily paid to these plaintiffs $7,600 for doing work which they were ordered to do. These men did the work of preparing the plans and specifications for an ice and fire boat, and the negotiations between the city and the concern that had been accepted as the builder fixes the price of such a boat at $380,000, and the contract was awarded to them at that price^. In my judgment, simply because the city chose subsequently to alter the character of boat and reduce the amount of the contract price, it cannot be relieved of meeting its just, fair and honest obligation to the people it employed to do the work of preparing the plans and specifications. It seems to be very clear, on the evidence in this case, that the plaintiffs are entitled to a verdict for $600, with interest from the time when that money was withheld from them, the date of which I do not recall.”

It was claimed by the plaintiffs, on the trial in the court below, that they had not only prepared the plans and specifications for an ice and fire boat, but had actually inspected the materials for the fire apparatus to be contained therein. Their recovery in the court below was simply for the $600 paid them under the agreement, as it was construed by both parties at the time, after the plans and specifications of a vessel to cost $380,000, the bid of the William Cramp & Sons Ship & Engine Building Company had been accepted, and the contract for the building awarded to them. The verdict of the jury was for $1,112.77, which doubtless included the actual amount of work done by the plaintiffs in supervising the construction of the boat and the materials for the fire apparatus, before the change eliminating the fire apparatus from the boat and confining it to an ice boat.

The court, however, on motion for judgment n. o. v. and for a new trial ordered “that if the plaintiffs shall within thirty days file a remittitur of all the verdict above the sum of $681, a new. trial will be refused, otherwise granted.” The plaintiffs’ remittitur was filed and judgment entered upon the reduced amount of the verdict, and inasmuch as there is no appeal on the part of the plaintiffs, we cannot enter judgment upon the verdict as rendered. As we understand the testimony and the argument of the defendant, it is not claimed that the plaintiffs agreed in any way to the elimination of the fire apparatus and the consequent reduction of the price of the vessel, for which they had prepared the plans and specifications.

We are of opinion, therefore, that the amount fixed by the court was the least for which judgment should have been entered. Judgment affirmed.


author: Henderson, J.,

text:
    Fidelity Trust Company v. Lee, Appellant.

      Landlord and tenant — Lease—Notice to quit — Vacation of premises— Holding over.

    Where a tenant gives notice of intention to vacate, three months before the end of the term, as provided by the lease, but at the end of the term, remains in possession under an extension, and at the end of the extension does not vacate, but refuses to sign a new lease on the ground that certain repairs which had been promised him had not been made, he holds over another year, and is bound according to the terms of the preceding lease.
    February 26, 1909:
    Argued Oct. 22, 1908.
    Appeal, No. 135, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,202, discharging rule for opening judgment in case of Fidelity Trust Company v. Henry S. Lee.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment in ejectment entered on lease.
    The opinion of the Superior Court states the facts.

      Error assigned was order discharging rule to open judgment.

      DeForrest Ballou, for appellant.
    We feel that the case of Henderson v. Mfg. Co., 24 Pa. Superior Ct. 422, should rule this case.
    Where there is an uncertainty in the provision in a lease relating to renewals, they are in general to be construed in favor of the tenant: Kaufmann v. Liggett, 209 Pa. 87; Swigert v. Hartzell, 20 Pa. Superior Ct. 56.

      Henry H. Farley, with him Edward B. West, for appellee.
    It is respectfully submitted that the case at bar is on all fours with the case of Patterson v. Park, 166 Pa. 25.
    This case is merely carrying out the well-settled principle established in McBrier v. Marshall, 126 Pa. 290. See also Harding v. Seeley, 148 Pa. 20; Harvey v. Gunzberg, 148 Pa. 294; Williams v. Ladew, 171 Pa. 369; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Lipper v. Bouve, Crawford & Co., 6 Pa. Superior Ct. 452; Bakewell v. Turner, 36 Pa. Superior Ct. 283; Henderson v. Clay Mfg. Co., 24 Pa. Superior Ct. 422.
   Opinion by

Henderson, J.,

The lease between the parties granted a term of one year from November 15, 1905. There was a provision therein that unless either party should give to the other written notice for removal at least three months before the end of the term the lease should continue on the same terms and conditions for a further period of one year, and so on, from year to year until terminated by either party by giving the notice referred to. The appellant gave notice on August 2, 1906, that he would vacate the premises at the end, of the term on account of trouble with the lessor concerning repairs agreed to be made. After some negotiation there was an agreement for the extension of the term which was indorsed on the lease on November 1, 1906, as follows: “It is hereby further understood and agreed that this lease shall be extended until the first day of May, 1907.” The lessee did not serve any other notice on the lessor of an intention to leave, nor did he vacate the premises at the end of the extended term, and when a lease was tendered to him to be executed he refused to sign it, because the repairs which had been promised him when he went into the house had not been made. He contends now that he is not holding under a lease; that the lease which he signed is terminated and that there was no authority for the judgment entered against him, and the case of Henderson v. Mfg. Co., 24 Pa. Superior Ct. 422, is relied on to sustain this position. There can be no doubt of the right of the tenant to have gone out at the end of the first year, notice having been given pursuant to the terms of the contract, but he did not go out and the term was extended for an additional period. Notice on the part of the tenant of his intention to vacate did not of itself destroy the tenancy. It was necessary that he go out in order to produce that result. He had the election to remain for an additional year or to leave, but a notice to leave is not the equivalent of a vacation. It must be followed up by a removal of the tenant from the premises. In the case cited by the appellant there was a notice by the tenant of his intention to leave and before the end of the term an oral agreement for a new lease at a rate agreed upon. When the tenant called at the end of the term for a copy of the lease it had not been prepared, but was promised for the next day. The lease was not delivered, and the landlord refused to execute it. After another demand for a lease the tenant left the premises within a month and paid rent to that date. It is obvious that there was no liability in that case under the original contract, for the tenant was induced to hold over on the promise of a new lease which the landlord subsequently refused to give. There was no intention on the part of the tenant to remain under the old lease. He had terminated that and provided for a new lease on the strength of which he remained in the premises. The law will give no encouragement to the use of a trick or a breach of contract to create a tenancy not intended by the lessee. But the appellant’s case is different. There was no new lease nor promise of one; there was no inducement to the tenant to hold over in expectation of a new lease. There is the plain case of a tenant remaining in possession after the end of the term and refusing to pay the rent because of an alleged unperformed agreement to make repairs in connection with the contract for the first year. The facts bring the case clearly within the decisions in McBrier v. Marshall, 126 Pa. 390; Harvey v. Gunzberg, 148 Pa. 294; Patterson v. Park, 166 Pa. 25; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Bakewell v. Turner, 36 Pa. Superior Ct. 283, which hold that where a tenant remains in possession after the expiration of his term without having made any new arrangement with his landlord he is bound according to the obligations of the preceding lease. A provision for the termination of the lease on notice from the tenant must be interpreted in the light of its manifest purpose. It is intended to give to the tenant a right to leave at the end of the period stated and thus release himself from further liability on the lease. It only becomes effective in relief of the tenant when he goes out at the end of the term. If it were not so every such notice under a provision in a lease would have the effect to abrogate the contract and leave the tenant in possession, if he chose to remain, without a lease and without adequate means by which the landlord could recover possession promptly.

The judgment is affirmed.


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    Haspel v. McLaughlin-Lyons, Appellant.

      Building associations — Mortgage—Appropriation of shares — Insolvency —Declarations-.—Secretary,

    1. Where a building association is on the eve of insolvency, there can be no appropriation of the value of shares to a mortgage debt.
    2. A declaration of the secretary of a building association made to a member on the eve of the insolvency of the company to the effect that the member was through with her payments, is inadmissible in an action on the mortgage because the secretary has no authority to bind the association by such a statement.
    Argued Oct. 23, 1908.
    Appeal, No. 144, Oct. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 823, on verdict for plaintiff in case of Lewis A. Haspel v. Bridget McLaughlin-Lyons.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Sci. fa. sur mortgage. Before Ralston, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,343.47. Defendant appealed.

      Error assigned was in giving binding instructions for plain; tiff.

      Edmund Randall, with him Thomas A. Mullen and James A. Flaherty, for appellant.
    The intention of the payer to appropriate the payment to a particular debt may be collected from the nature of the transaction, and may be referred to the jury as a matter of fact: West Branch Bank v. Moorehead, 5 W. & S. 542; Moorehead v. West Branch Bank, 3 W. & S. 550.

      Wayne P. Rambo, with him Albert L. Lewis, for appellee.
    A stockholder and borrowing member cannot appropriate the value of his shares in liquidation of a mortgage debt when the association is insolvent, or on the eve of insolvency: Mechanics’ & Workingmen’s B. & L. Assn. v. Swartz, 5 Pa. Dist. Rep. 318; Callahan’s App., 124 Pa. 138; North American Bldg. Assn. v. Sutton, 35 Pa. 463; Strohen v. Franklin Sav. Fund, etc., Assn., 115 Pa. 273; Haspel v. Moffitt, 32 Pa. Superior Ct. 344; Freemansburg B. & L. Assn. v. Watts, 199 Pa. 221.
    February 26, 1909:
    That which was done by the defendant at the last meeting on February 15, 1904, does not amount to an appropriation: York Trust Co. v. Gallatin, 186 Pa. 150; Kurtz v. Campbell, 218 Pa. 524; Johnston v. B & L. Assn., 104 Pa. 394; B. & L. Assn., v. Schutte, 29 Pa. Superior Ct. 265; State Saving & Loan Assn. v. Carroll, 4 Pa. Dist. Rep. 6; Sleeper v. Winkel, 122 Fed. Repr. 736.
    The secretary had no authority to bind the plaintiff association by his declarations: Johnston v. B. & L. Assn., 104 Pa. 394.
   Opinion by

Beaver, J.,

The defendant joined a building and loan association, of which the plaintiff is the receiver, in February, 1892, and took out five shares of stock in the seventh series, which she continuously held until the last meeting of the association in February, 1904. The association, on April 2, 1904, made an assignment in due form to one Robbins, who refused to act as assignee or accept the trust. Subsequently, November 7, 1904, the plaintiff was appointed receiver for the association and was subsequently directed by the court to proceed to collect all moneys due the association by appropriate legal proceedings. The receiver, finding among the assets of the association a mortgage of the defendant for $1,000, issued a scire facias thereon, which has beén twice tried. At the first trial the trial judge refused an offer on the part of the defendant to show the withdrawal value of her shares by the seventeenth annual report of the society and also the statement made to her at the time of her last payment of dues by the secretary and the surrender of her 'certificate of stock. At this trial a verdict was directed for the plaintiff. A new trial was granted, on the ground that the testimony rejected should have been received and, on the second trial, it was allowed, but a judgment again directed for the plaintiff for the balance of mortgage and interest, giving due credit for the amounts of principal and interest paid on account of the mortgage, but refusing to allow the withdrawal value of the stock held by the defendant as a credit upon the mortgage, as claimed by her, by virtue of a conversation between her and the secretary of the association and the delivery of her book, in which were credited her chargés and payments of monthly dues, interest and the payments directly on account of the mortgage, and her certificate of stock, without an assignment.

The general subject is discussed by our Brother Henderson in Haspel v. Moffitt, 32 Pa. Superior Ct. 344, in which the authorities pertinent to the case at that time were quite fully discussed. It is therein said: “The association is insolvent and the authorities all hold that after the insolvency of a building association there cannot be an appropriation of the value of shares to a mortgage debt. The subject is fully discussed in Strohen v. Franklin Saving Fund, etc., Association, 115 Pa. 273. . . . The rights of the stockholders were fixed by the insolvency of the company. Payments made on the stock could not afterward be applied to the indebtedness. The equities of other stockholders forbid this. The payment of dues is, of course, indirectly a payment on the loan. Such payment adds to the value of the stock, and in that way produces a fund out of which payment of the debt is to be made when a sufficient amount for that purpose has been paid in on stock contributions. But this is a very different thing from paying on the mortgage debt. There is a double obligation of the borrowing stockholder. He must pay his mortgage according to its terms, and in addition pay his stock contributions, interest, etc. Payment of the mortgage does not relieve the stockholder from liability for his stock contributions, unless it is expressly so agreed when the money is borrowed or before insolvency; nor can payments on stock be applied to a loan, except by such agreement.”

Assuming that all that is claimed by the defendant was said to the secretary of the association, .and all that he said in reply is absolute verity, and assuming further that the secretary had authority to bind the association, it does not seem to us, in view . of the assignment which was made six weeks after the alleged conversation took place, that an appropriation of the stock at its withdrawal value could be used at that time toward the payment of the mortgage. The meeting at which the conversation occurred was the last meeting held by the association. The next step in the winding up of its business was the assignment. This was evidence of insolvency or of the eve of insolvency, so as to render the appropriation, even if it had been made, inequitable and invalid.

It was held in Johnston v. Elizabeth B. & L. Assn., 104 Pa. 394, that the “declarations of the secretary of a corporation as to the amount due on a mortgage held by it are not admissible in evidence in a suit on the mortgage, unless it be shown that the secretary had authority to bind the corporation by such admissions. It is not sufficient to show that as secretary he had charge of the books and accounts of the corporation.”

It was not shown, nor was there an effort to show, that the secretary had any authority to bind the corporation by a statement such as he is alleged to have made to the defendant in this case, nor does the testimony, in our view of it, amount to an appropriation by the defendant. According to her testimony, after stating that she had given the book, with $10.00 therein for the payment of her dues to Mr. Carroll, the secretary, she said: “ A. He handed me back the change and told me that I was clear in the society, and he looked over his books and he looked over mine. Q. What is that? A. He told me I was clear of the society, and he looked over his books and looked over mine. Q. What did he say? A. He told me he would send me my papers and bring everything satisfactory to me, and for me to pay no more into the society — I was through — and I didn’t go there any more until I got notice from Mr. Lewis'about a year or so after this.” There is no allegation that the defendant assigned her stock to the association or that she said or did anything which indicated an intention on her part to make an appropriation of the value of her stock toward the payment of the mortgage. Even if this had been so, as already shown, such an appropriation after the insolvency — and we take it the rule is the same, if attempted on the eve of insolvency — would have been invalid. Whether the statement of the secretary meant that, because of the insolvency of the company, she was through with it and should pay no more money, or what the interpretation might be, it is very clear from all the facts of the case, under very numerous authorities, that the declaration of the secretary did not bind the society and that an appropriation actually made by the defendant and accepted and assented to by the secretary could not affect the interest of the other shareholders adversely.

In Kurtz v. Campbell, 218 Pa. 524, affirming the case of Kurtz, Appellant, v. Campbell, 31 Pa. Superior Ct. 516, which was decided upon the authority of York Trust, etc., Co. v. Gallatin, 186 Pa. 150, and Erthal v. Glueck, 10 Pa. Superior Ct. 402, it was held that: “A borrower from a building and loan association has the right to elect to treat all past and future payments of dues on the stock as credits on the bond and mortgage, and to direct the officers of the association so to appropriate and credit the same. In such a case it is immaterial that the appropriation was made in the assignment of the stock rather than on the bond and mortgage, when the assignment of the stock was concurrent with the delivery of the bond and mortgage, and the whole constituted one transaction. The insolvency of the association does not affect an appropriation made prior thereto.” In that case the Supreme Court said: “This case is clearly within the rule of York Trust, etc., Co. v. Gallatin, 186 Pa. 150. The majority of the court are of opinion that on principle that case was erroneously decided, but as it has stood on the books for nine years and many contracts have been made in reliance on it, the principle of stare decisis should prevail and the authority of that decision should not now be disturbed.”

In this case, however, there is no direct evidence of an appropriation by the defendant. It was not made to nor acquiesced in by any officer of the corporation who had authority to do so, and even if it had been so the associátion was on the eve of making an assignment and was undoubtedly insolvent at the time.

Practically the only assignment of error here is in the direction of the trial judge of the court below to the jury to find a verdict in favor of plaintiff for $1,343.47. The statement, however, furnished by the plaintiff clearly shows that the defendant had credit for all payments made by her on her book which were deducted from the amount of the mortgage, leaving the balance, which with interest was the amount of the judgment. We find no error in directing the judgment for the plaintiff, nor in the amount for which it was entered.

Judgment affirmed.


text:
    Altoona Sanitary Milk Company v. Dietrich, Appellant.
    February 26, 1909:
    Argued Oct. 26, 1908.
    Appeal, No. 10, Oct. T., 1908, by defendant, from judgment of C. P. Blair Co., Oct. T., 1907, No. 320, on verdict for plaintiff in case of Altoona Sanitary Milk Company v. H. H. Dietrich.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Porter, J.,

This case involves the same questions considered in the case of Altoona Sanitary Milk Company v. Armstrong, in which an opinion has this day been filed, post, p. 350, and for the reasons there stated the judgment is affirmed.


text:
    Stewart’s Private Road.

      Road law — Private road — Private right of way — Acts of June 13, 1836, P. L. 551, and April 4, 1901, P. L. 65 — Field—Plantation:
    1. The Act of June 13, 1836, P. L. 551, as amended by the Act of April 4, 1901, P. L. 65, authorizes the laying out of a private road from a field or plantation separated from the owner’s mansion house or dwelling, over another person’s land to a public road.

      February 26, 1909:
    2. Where a deed for a field or plantation grants a right of way to continue until the grantee shall secure a private or public road direct to the land granted, from his own premises, the grantee has the right to institute proceedings for a private road under the act of June 13, 1836, notwithstanding the grant of right of way in the deed.
    Argued Oct. 28, 1908.
    Appeal, No. 57, Oct. T., 1908, by Annie C. Gamer, from order of Q. S. Huntingdon Co., Feb. T., 1907, No. 5, overruling exceptions to report of viewers in the matter of petition for private road for A. Campbell Stewart.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for appointment of viewers to lay out a private road.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order dismissing petition for appointment of viewers.

      James S. Woods, with him J. R. & W. B. Simpson and W. H. Woods, for appellant.
    Where the applicant can make a road on his own land which leads to the public road, there is no necessity for a statutory way: Pousson v. Porche, 6 La. Ann. 118; Plum Twp. Private Road, 48 Pittsburg L. J. 171.

      H. H. Waite, with him T. W. Myton, for appellee.
    Even where the owner may have access to the highway from his own land, he may, if such a route would be especially difficult and burdensome, have a private road laid out over his neighbor’s land: Brecknock Township Road, 2 Woodward, 13, 437.
   Opinion by

Beaver, J.,

The appellee having a field or plantation separated from his mansion house or dwelling by lands of the appellant, petitioned for viewers to lay out a private road “to view the place where the said road is requested to be laid out and make report of their proceedings to the said court.”

The viewers, having given notice to the appellant and to the county commissioners, after being duly sworn and affirmed, unanimously reported:

“We proceeded to view and survey the line and location of the said private road and find that there is occasion and necessity for the same, and we have laid out the said road for private use from a point in a public road in West Township leading from the Manor Hill road to the Mooresville road, from a point near the house of A. Campbell Stewart through unimproved land of the said Mrs. Jane Garner to a point on the line of the plantation or the lands of the said A. Campbell Stewart and also attach a plat or draft of the said road herewith, showing the courses and distances and the lands through which the road passes.

“And we further assess and allow as damages to the said Mrs. Jane Garner through whose unimproved lands the said road passes, the sum of $20.00 (Twenty Dollars).”

This report was confirmed nisi and the road therein reported ordered to be opened twenty feet wide. It was subsequently confirmed absolutely, but the decree of confirmation absolute was taken off, having been entered through mistake, exceptions having been filed September 14, four days prior to confirmation absolute.

The appellant argues that, “The assignments of error in this case raise two questions:

“First. Does the act of June 13, 1836, as amended by the Act of April 4,1901, P. L. 65, sec. 1, authorize the granting of a right of way from an outlying field to a public highway?
“Second. Where a party has a private road from an outlying field to a public highway, is there any necessity for another private way from it to the same public highway?”

The Act of April 4, 1901, P. L. 65, which amends sec. 11 of the Act of June 13, 1836, P. L. 551, provides: “The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as directed by the said act of thirteenth June, one thousand eight hundred and thirty-six.”

We think the court had jurisdiction under the act of 1836, amended by this act, to appoint viewers, as prayed for in the petition of the appellee, but the act of 1901 above cited simply makes clear this right and extends the provisions of the act of 1836 to associations, partnerships and stock companies or corporations, and includes lands or leaseholds as well as dwellings or plantations, as contained in the act of 1836. The field or land of the appellee is a “plantation” within the meaning of the act of 1836, being land planted, and is also embraced in the description “lands or leaseholds,” as contained in the act of 1901. The viewers were, therefore, properly appointed. They reported that the road was necessary. If the appellant was dissatisfied with the report in this respect, she could have petitioned for a review, but this was not done and she relied entirely upon her exceptions.

The first assignment relates to the overruling by the court below of the first exception to the report of the viewers, which was: “The proposed private road is only to a single field of A. Campbell Stewart, which he purchased separately from his farm, and when he purchased said field, a grant of a right of way was conveyed to him by the said deed, and he has been using said right of way or private road ever since. (See deed from J. E. Davis and others, recorded in Deed Book 'P,’ No. 4, page 58.)” This exception was overruled and the reasons given for it are embraced in the decree of the court below, which is assigned for error in the fourth assignment, as follows: “The first exception as filed to the report of viewers claims that the petitioner has and is now using a private right of way acquired under and by virtue of deed from John E. Davis and wife to A. Campbell Stewart, the petitioner, and his wife, dated April 13, 1899, and is, therefore, not entitled to an additional private road. We have examined this right of way and find it to be but a limited one. 'This grant of right of way to continue to the said parties of the second part, their heirs and assigns, until they shall secure a private or public road direct to said lands from their premises in West Township, etc.’ We do not think that, under this limited privilege, the petitioner would be deprived of a direct road to and from their land upon his petition. There is no exception as to the regularity of this report. The evidence taken does not sustain the other exceptions. We, however, think it proper that each party pay his own witness costs and that the petitioner for the road pay the docket costs of this proceeding.” The limitation in the deed to Stewart is not an express one, but it is, it seems to us, clearly implied therein that the grantee should make within a reasonable time an effort to secure a private or public road direct to the lands conveyed to him. Having done this — secured a private road, as returned by the viewers — the right of way conveyed by the parties from whom he purchased these lands reverted to them and his right to use it ceased, upon the actual confirmation of the new road.

There is nothing in the case requiring adverse action upon our part.

The decree of the court below is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Photogravure and Color Company v. Goodman, Appellant.

      Affidavit of defense — Practice, C. P. — Assumpsit for work done — Set-off.

    1. In an action to recover for work done in making photogravure plates and printing therefrom, an affidavit of defense is sufficient to prevent judgment which avers that by reason of the defects and faults in the prints due to the careless and unskillful workmanship of plaintiff, many of the persons who subscribed for the work for which they were intended, refused to take the books, that at least 100 books were left unsold to defendant’s loss of $500, and that the book had suffered in reputation, and also that a large number of subscribers on account of the defective work had refused to renew their subscriptions and that defendant had suffered thereby to the amount of $1,000.
    2. In such a case the defendant may also set up -in his affidavit of defense that it was the understanding between him and the plaintiff, and in accordance with the custom of the trade, that these plates were to become the property of the defendant, but that the plaintiff had never delivered them, and that the defendant was entitled to set off their value to an amount named against plaintiff’s claim.
    Argued Oct. 22, 1908.
    Appeal, No. 131, Oct. T., 1908, by-defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 783, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Photogravure and Color Company v. Philip Goodman, trading as Goodman’s Sons & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for work done.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the affidavit are set forth in the opinion of the Superior Court.

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

      J.G.G. Forster, of Evans & Forster, for appellant.
    All that is required of an affidavit of defense is that the plaintiff must be given notice of what he has to meet and in case of a set-off that the amount, where possible, be liquidated so that the plaintiff may take judgment for the balance appearing: Kaufman v. Iron Mining Co., 105 Pa. 537; Betz v. Shepperson, 8 Atl. Repr. 175.
    Where an article is ordered from a manufacturer for a particular purpose and it is supplied and sold for that purpose, there is an implied warranty that it shall be reasonably fit for the intended purpose: Flax Mills v. Asbestos Patent Fibre Co., 4 W. N. C. 463; McCormick Harvesting Machine Co. v. Nicholson, 17 Pa. Superior Ct. 188; Hylton v. Symes, 7 Phila. 96; Haines v. Young, 13 Pa. Superior Ct. 303.
    Damages sustained by reason of the delivery of an article inferior to that contracted for, or defective in some important particular, may be set off in an action for the purchase price: Uhler v. Sanderson, 38 Pa. 128; Scott v. Coal Co., 89 Pa. 231; Kaufman v. Mining Co., 105 Pa. 537; Smith v. Citizens’ Gas, etc., Co., 5 W. N. C. 97; Pulp Co. v. Jessup & Moore Paper Co., 21 Pa. Superior Ct. 495.
    February 26, 1909:
    When the plaintiff has failed to fully perform his contract though he may be entitled to recover on a quantum meruit for the work done, he cannot claim the full contract price, and the defendant may set off the damages arising from the failure to fully perform: Shaw v. Badger, 12 S. & R. 275; Noble v. James, 2 Grant, 278.

      Alfred Aarons, with him Henry N. Wessel, for appellee.
    The attempted set-off for books left unsold upon defendant’s hands is bad: (a) Because having accepted plaintiff’s work, the measure of damages is the difference between the value of the goods delivered and their value as it would have been had the goods been according to the contract: Himes v. Kiehl, 154 Pa. 190; Weed v. Weinberger, 12 Pa. Superior Ct. 12; Bascom v. Danville Stove, etc., Co., 182 Pa. 427; Thompson v. Burgey, 36 Pa. 403.

      (b) Because defendant does not plead any facts which- show that the books alleged to have been unsold would have positively been sold if the alleged breach by the plaintiff had not occurred: Weston v. Killeen, 11 Pa. C. C. Rep. 412.
    The attempted set-off for the value of the plates which the plaintiff did not deliver is bad because it is in contravention of the parol evidence rule.
   Opinion by

Beaver, J.,

Plaintiff claims from defendant, under the terms of a written offer and its acceptance, for making photogravure plates and printing therefrom, also for three several separate items of work done nq+^mtak^cl in the original proposal, aggregating $888.04.

The defendant, in two several affidavits of defense, claims: 1. “That by reason of the defects, faults and blemishes shown in the prints, and which were due entirely to the careless and unskillful workmanship of the plaintiff, many of the persons who had subscribed for the said work refused to take them and the book became unsalable, and at least one hundred of the said books were left unsold upon defendant’s hands, thereby damaging him to the extent of five hundred dollars.”

2. “That by reason of the careless, unskillful and unworkmanlike manner in which the said prints were made by the said plaintiff, the entire book or publication known as ‘The Directory of Directors’ has suffered in reputation, and as a valuable, profit-producing property has been greatly injured and impaired. That many of the advertisers have complained of the faulty prints in the 1907 book and together with a large number of subscribers have refused upon that account to again take the book or to advertise therein. Defendant says that by reason of the injury to the reputation of the said book or publication, he has suffered to the amount of one thousand dollars.”

And, in the supplemental affidavit of defense:

3. “That plaintiff made the plates for the forty-six subjects and made and delivered the prints from the same as stated in his claim filed. That, in compliance with the understanding between the plaintiff and the defendant, and in accordance with the custom of the trade, these plates became and were the property of the defendant and should have been delivered by the plaintiff to the defendant, but the said plaintiff has not delivered the said forty-six plates to the defendant or any part or portion thereof, but still holds and retains them in his possession. That the plaintiff charges for the plates and printing the sum of $18.00 per subject, that a fair and reasonable price for the printing is $6.00 per subject and that the plates themselves are reasonably worth the sum of $12.00 each. Defendant is, therefore, entitled to a set-off on account of the said forty-six plates at $12.00 each, amounting to the sum of $552.00.”

The plaintiff claims that: “The attempted set-off for the value of the plates which the plaintiff did not deliver is bad, because it is in contravention of the parol evidence rule,” that is, as we understand it, that the contract is in writing and the agreement for the delivery of the plates is in contradiction thereof.

There is no necessary contradiction between the claim of the plaintiff and that of the defendant. The proposition contained in the letter of the plaintiff is for the purpose of making photogravure plates and printing therefrom 500 prints of each. Nothing whatever is said therein in regard to the ownership of the plates or of the delivery thereof by the plaintiff to the defendant. If there was an understanding or agreement between the plaintiff and the defendant that these plates were to become the property of the defendant and were to be delivered by the plaintiff to the defendant, we cannot see why this fact should not be proved and, if the plates were reasonably worth the sum alleged by the defendant, why he would not be entitled to a set-off against the claim made by the plaintiff.

It is true that the second allegation as to the loss of the reputation of the Directory of Directors and the injury to it as a profit-producing property is somewhat vague and indefinite. It is alleged, however, that a large number of subscribers have refused, on account of the faulty prints in the 1907 book, which is the one in which the plates printed by the plaintiff were used, to again take the book or advertise therein. If this were the only ground of exception to the action of the court below in entering judgment for want of a sufficient affidavit of defense, we would probably hesitate about reversing the judgment. The number of subscribers who have refused to advertise in the book for the next year and the amount actually lost by such refusal in each case, if set forth, would have furnished some guide by which the loss to the defendant could have been estimated. If the offer is made to show this on the trial of the cause, we cannot see why it will not be competent and relevant.

If the defendant had set forth in the statement of his first ground of defense the exact number of subscribers who had actually subscribed for the book and had refused to take it, because of the defects, faults and blemishes in the prints, the affidavit would have been somewhat more satisfactory, but we are of the opinion that enough is stated in this averment to authorize, if the allegation is made good, the submission of the amount of loss sustained by the defendant to a jury. Assuming the facts as stated in the affidavits to be true, enough is alleged to raise the inquiry as to the amount of loss sustained by the defendant by reason of the careless and unskillful workmanship of the plaintiff and, if the allegations are sustained by competent and relevant evidence, to constitute a set-off against the plaintiff’s claim.

The judgment is reversed with a procedendo.


text:
    Mundorf v. Wier, Appellant.
    February 26, 1909:

      Promissory notes — Contribution—Setoff.

      In a suit by the joint maker of a note who had paid the same to recover from his comaker's executor the full amount of the note on the ground that plaintiff was surety, where the defendant shows that the decedent had used the proceeds of the note to pay a joint note of the decedent and the plaintiff, the plaintiff may be permitted to recover one-half of the amount of the note in suit.
    Argued Oct. 28, 1908.
    Appeal, No. 120, Oct. T., 1908, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1907, No. 41, on verdict for plaintiff in case of George E. Mundorf et al. v. Anna Wier et al., executors of Charles Wier, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before A. 0. Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in directing a verdict in favor of the plaintiff for $332.62. Defendant appealed. .

      A. L. Cole, for appellant,
    cited: Clark v. Lindsay, 7 Pa. Superior Ct. 43.

      W. C. Pentz, with him W. L. Calkins, for appellee.
   Opinion by

Henderson, J.,

The plaintiff sued to recover the amount of a note for $600 which he had signed with Charles Wier whose estate is represented by the defendants. Evidence was offered from which it appeared that Wier received the proceeds of the note at the Deposit Bank and that the note was subsequently paid by the plaintiff. The defense was not a denial of the plaintiff’s averment, but the presentation of a counterclaim in the nature of a set-off to the effect that the plaintiff- and Wier were joint obligors on a note payable to one Van Tassel and that this note was paid by Wier, by reason of which payment the plaintiff became liable to Wier for one-half of the amount of the note. Objection was made by the plaintiff to this evidence, but the objection was overruled. The dates of the respective transactions led the court to conclude that the latter note was paid by Wier with the proceeds of the first note, and the jury was instructed that the plaintiff was entitled to a verdict for one-half of the Deposit Bank note. The single proposition presented by the appellant is that as the statement of claim declared that the plaintiff was surety on the decedent's note and, therefore, entitled to a judgment for the amount paid by him, there could be no recovery for one-half that amount, on proof that the plaintiff was a joint obligor. As the case was presented, however, we do not think this question arises. Whatever may have been the view of the trial judge as to the basis of the plaintiff’s right there can be no doubt that the plaintiff’s evidence supported his declaration and that the defendants’ evidence showed a liability on the part of the plaintiff to contribute to the extent of one-half of the amount of the Van Tassel note. Being so liable, it was proper for the executors to present that liability and offset it against the plaintiff’s claim which they were apparently not able to controvert. As the notes were for equal amounts the effect was that the plaintiff failed to recover more than one-half of the note which he had paid because of the set-off. The instruction of the court was in accord with the evidence as to the amount to which the plaintiff was entitled, and the verdict is not inconsistent with the declaration.

The judgment is affirmed.