text:
    Warrington v. Mengel, Appellant.

      Interpleader — Equity—Equitable assignment — Trusts and trustees.

    Where a person receives and holds money for the specific purpose of paying it over to a contractor after certain work is completed, the transaction constitutes an equitable assignment of the fund, and after such work has been properly completed, the assignment cannot be revoked by the party making it, and the person holding the money is not entitled to an interpleader when suit is brought against him by the contractor to secure payment of the fund.
    Argued Nov. 9, 1909.
    Appeal, No. 10, Oct. T,, 1909, by defendants, from order of C. P. Berks Co., Nov. T., 1908, No. 22, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara E, Warrington and James A. Seagreaves, to use of D. Elmer Dampman, v. Ralph IT. Mengel and J. Hain Mengel, doing business as Men-gel & Mengel.
    December 20, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for money had and received.
    Rule for judgment for want of a sufficient affidavit of defense. Before Stevens, J.
    The facts appear by the opinion of the Superior Court.

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

      Ralph II. Mengel, for appellants.

      W. B. Bechtel, for appellees.
   Opinion by

Beaver, J.,

The claim of the plaintiffs is based upon the following written instrument:

“Exhibit ‘A.’

“Garrett B. Stevens

“William Kerper Stevens

“Law Offices of “Stevens & Stevens.

“Reading, Pa.

“ January 22, 1908.

“Mengel & Mengel,

“Gentlemen:—

“Misunderstandings having arisen as to the alterations of ‘Reading House’ owned by Clara E. Warrington and Brother; the bills having been rendered which exceed $2500 the original estimate. Now it is hereby agreed so as to keep the total cost within the amount of money in your hands you will pay for material and labor upon ‘Release of Mechanics’ Liens’ only such amounts as shall be approved by D. Elmer Dampman upon written order signed by D. Elmer Dampman and countersigned by G, B. Stevens. This agreement being made m contemplation of the original agreement, viz.: — that the toilets be completed, the gas pipe be reled to the second floor, the relaying of the brick pavements, gents toilet to have a cement floor and ladies toilet to have a wooden floor, providing, however, if the actual cost shall be found to exceed the said sum of $2500 dollars nothing herein contained shall prevent the demand for actual cost.

“ (Signed) D. E. Dampman [seal.]

“ (Signed) Mrs. Clara E. Warrington [seal.]

“ (Signed) G. B. Stevens [seal.] ”

The defendants are not parties to this agreement in the sense of having made themselves so by their signature but, as is clearly shown by their affidavit of defense, they accepted whatever of obligation is implied therein and thereby, and are liable to the use plaintiff for whatever of contract obligation is to be inferred therefrom. The defendants, whilst alleging their entire lack of interest in the balance of the fund in their hands, for the recovery of which the suit is brought, claim that the amount is demanded by the parties who now are the legal plaintiffs in the suit, who placed the money in their hands for the specific purpose indicated in the agreement, and that, because of the conflicting claims of .the legal and equitable plaintiffs, they have filed a stakeholders’ bill, asking for an issue to determine the respective rights of these antagonistic claims, claiming their right to do so under the provisions of the special Act of March 27, 1848, P. L. 265, relating to the counties of Berks and Schuylkill, and that because of the pendency of the said bill in equity, they should not be called upon to pay the balance admittedly in their hands to the said use plaintiff.

The special act of assembly referred to has received full consideration and interpretation in the case of Bechtel v. Sheafer, 117 Pa. 555. In that case, Mr. Justice Clark, who delivered the opinion, said: “'The mere fact that a contract relation existed between Sheafer and Betchel, by the terms of which Sheafer was bound to pay the money to him, will not necessarily deprive Sheafer of the right to an interpleader,” citing a number of cases as establishing this general principle. He also says, however: “It is true, as a general rule, the party seeking relief by an interpleader must not have incurred any independent liability to either of the rival claimants; if he have expressly acknowledged the title or right of one of them, and agreed to hold the property for him, or, disregarding the adverse claim of one, has by contract made himself liable in any event to the other, he cannot be said to stand indifferent between them.”

In East Lewisburg Lumber, etc., Co. v. Marsh, 91 Pa. 96, it was held that “Equity will support assignments of contingent interests and expectancies; things which have no present actual existence, but rest in mere possibility; not indeed as a present, positive transfer operative in prsesenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse.”

See also Ruple v. Bindley, 91 Pa. 296, the first paragraph of the syllabus of which is: “An assignment for a valuable consideration of demands, having at the time no actual existence, but which rest in expectancy only, is valid'in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence.”

The court below was, therefore, justified, as we think, referring to the balance admitted by the defendants to be in their hands, in saying: “The money was deposited with and held by the defendants for a specific purpose — payment to the plaintiff for work done under the contract with Mrs. Warring-ton. When the defendants accepted this money, they became liable to the plaintiff according to the terms of the agreement under which they received it; in other words, they became trustees for the plaintiff, who became the equitable assignee of the fund. 'An equitable assignment is an agreement in the nature of a declaration of trust. . . . The form is immaterial, so that there be a clearly expressed intention of an immediate transfer of the right to the assignee. Where one was indebted to a number of persons and remitted a sum of money to B, with order to give specific parts to certain creditors, it was held that B became a trustee for those creditors, and that they, thereupon, acquired such an interest in the trust fund as could not be divested by an attachment against the debtor, though some of the creditors had no notice of the trust before the service of the attachment Sharpless v. Welsh, 4 Dall. 279; Ruple v. Bindley, 91 Pa. 296; ‘The appropriation being complete as an assignment of the fund by the agreement of the parties could not be revoked:’ Nesmith v. Drum, 8 W. & S. 9,”

The equitable plaintiff, having met all the requirements of the agreement with the legal plaintiffs, was entitled to the fund in the hands of the defendants, held by them in trust for him, awaiting only the complete fulfillment of the conditions under which the money was so held. There is no allegation in the affidavit of defense that these conditions were not fully met. The implied obligation of the defendants, arising out of the terms and conditions upon which they held the money, in which they allege they have no personal interest, therefore became operative and they are bound thereby. The assignment of the legal plaintiffs to the defendants for the benefit of the use plaintiff was an appropriation of the fund which, having been in part executed by the defendants and the conditions of the contract between the legal and equitable plaintiffs having been fully carried out, was such an appropriation of the fund as could not be revoked: Nesmith v. Drum, 8 W. & S. 9; Day & Sharpe’s Assigned Estate, 21 Pa. Superior Ct. 118.

It may be noted, although we do not regard it as essential to the integrity of the judgment entered by the court below, that the affidavit of defense states no specific ground upon which the legal plaintiffs claim the fund in the hands of the defendants in contravention of their written agreement.

We are all of the opinion that the judgment of the court below was properly entered.

Judgment affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Hirsh’s Estate.

      Gift — Evidence—Findings of fact — Orphans’ Court.

    A finding of fact by the orphans’ court that money alleged to have been a loan to the decedent was in reality a gift, if based upon sufficient and competent evidence, will not be disturbed by the appellate court in the absence of clear error.
    Argued Nov. 9, 1909.
    December 20, 1909:
    Appeal, No. 8, Oct. T., 1909, by Morris Horkheimer, from decree of O. C.' Lancaster- Co., Nov. T., 1906, No. 46, dismissing exceptions to adjudication in Estate of Abraham Hirsh, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to adjudication.

      W. H. Keller, of Coyle & Keller, with him F. B. Davis, fqr appellant.

      C. Eugene Montgomery, for appellee.
   Opinion by

Beaver, J.,

In the distribution of decedent’s estate, the court below awarded to Dora Hirsh, the widow of the decedent, the amount of á note, together with the interest thereon, which she held as a creditor. The claim of Morris Horkheimer for an alleged loan to the decedent in his lifetime, amounting with interest to $669.90, was disallowed. The allowance of the former and the disallowance of the latter constitute the assignments of error.

As to the claim of Dora Hirsh there was no dispute, and with the disallowance of the claim of Morris Horkheimer there was sufficient of a balance in the hands of the executrix to pay it in full. The only practical question then for consideration is, Was the claim of Morris Horkheimer properly disallowed?

The adjudicating judge, in his opinion dismissing the exceptions filed to his adjudication, says: “The witness for ex-ceptant testified that Hirsh had been supported for ten years previous to his death by Horkheimer. Assuming that the witness’s information was correct, the conclusion irresistibly follows that Horkheimer made gifts and many of them to Hirsh, which strengthens the presumption that the money with which the judgment had been paid was a gift. We cannot escape this conclusion. Having been a gift, there is nothing which can change its character. The donor may not, upon subsequently discovering a means to partially recoup, declare it a loan. After weighing the transactions and relations of the parties, we found that Horkheimer gave the money to Hirsh and, therefore, had no claim.”

A single witness was called by the appellant to testify as to what occurred at and after the time of the payment of the judgment, for the payment of which the claim of Horkheimer was made. The relevant testimony upon this subject, as it appears upon the notes of testimony, is as follows (H. J. Ryder, called by claimant and sworn, being upon the stand): Mr. Davis: “ Q. Did you hear any conversation about it (the payment of the judgment) on the part of Mr. Hirsh? ” Objected to by Mr. Montgomery. The Court: If he was present at a conversation in reference to this matter between Mr. Horkheimer and Mr. Hirsh, he can testify. “A. I was present after this thing was settled up and a conversation was held at my house, but not at the time — ” Mr. Montgomery: “ Q. Who were present at the time? A. Probably Mrs. Ryder and, may be, some members of the family. Mr. Horkheimer always stopped at my house.” The Court: “A general conversation? A. I know I was present, and Mr. Horkheimer and Mr. Hirsh and, maybe, some members of the family. I don’t know about the others.” Objected to by Mr. Montgomery. Allowed. Mr. Davis: “Q. This is a conversation between— A. A general conversation between the three — Mr. Hirsh, myself and Mr. Horkheimer.” Allowed. “Q. Just tell us the conversation as near as you can recall.” Objected to by Mr. Montgomery. “A. It will take a little history — ” The Court: You had better confine yourself to this particular transaction. “A. The judgment was paid on this property, as Mr. Hirsh expected to sell some other properties. Q. It is not necessary to go into that. Just give us the conversation about this transaction. A. And the money was loaned to Mr. Hirsh, and Mr. Horkheimer didn’t owe him anything at any time. Q. Was this shortly after this transaction? A. This was probably the same day, or, maybe, two or three days.” Mr. Davis: “ Was this money paid out by Mr. Hirsh and was it repaid to Mr. Horkheimer? ” Objected to by Mr.. Montgomery. Mr. Montgomery asks to have stricken out that part of the witness’s answer that “He didn’t owe him anything at any time.” The Court: We will let it go as a general conversation and will give you a general objection. Mr. Davis: “You were transacting some business for Mr. Horkheimer at that time? A. You say Mr. Horkheimer? Q, Yes, sir. A. Yes, sir.” Objected to by Mr. Montgomery. “Q. Did you receive a letter containing instructions from Mr. Horkheimer just before this? A. Not before this, subsequently. Not before, but subsequently.” Objected to by Mr. Montgomery. “Q. Is that the letter you. have there? A. Yes, sir.” Objected to by Mr. Montgomery. Disallowed. “Q. Had Mr. Hirsh any money or means at that time to pay this?” Objected to by Mr. Montgomery. Allowed. Mr. Montgomery excepts. “A. He hadn’t. Mr. Hirsh was supported by Mr. Horkheimer for the last ten years previous to his death.”

It is very clear, giving the fullest possible effect to the entire testimony of this witness, that no facts or statements by the parties are presented upon which the transaction can be determined to be a loan by Horkheimer to Hirsh. The adjudicating judge well says in his opinion dismissing the exceptions: “The answer was, ‘And the money was loaned to Mr. Hirsh, and Mr. Horkheimer didn’t owe him anything at any time.’ This was not responsive to the question. Altogether a voluntary expression of the witness’s opinion and was inadmissible as evidence. We denied a motion to strike out a part of this testimony, but attached no importance to it in the preparation of the decree.” The witness’s testimony related not to the conversation concerning which he was asked, but to his conclusions as to the situation between the decedent and the appellant which, of course, established nothing.

The court below having found the facts upon which the original adjudication was based and having heard an argument upon the exceptions to the adjudication, which was confirmed, based as we have seen upon a careful consideration of the testimony, we can see no reason for disturbing the conclusion reached.

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


author: Per Curiam,

text:
    Trimble’s License.

      Liquor law — Transfer of license — Appeal.
    1. An order of the court of quarter sessions refusing to transfer a liquor license for the reason that the statutory provisions relative to such a transfer had not been complied with, will not be reversed on an appeal by the owner of the license, where the appellant does not print in his paper-book the petition for transfer, and there is nothing in the record to show that the reason assigned by the lower court was not well founded, or that the appellant was such a party aggrieved as was entitled to an appeal.

      Liquor law — Qualification of applicant — Citizenship—Revocation of license — Act of May 13, 1887, P. L. 108.
    2. An alien who has merely declared his intention to become a citizen of the United States, and to renounce his former allegiance, is not qualified to hold a liquor license under the Act of May 13, 1887, P. L. 108, which provides that such licenses “ shall only be granted to citizens of the United States;” and this is the case although the constitution and law of the state, where the declaration had been made provides that persons who make such declaration shall enjoy all the privileges of citizens, including the' right to vote and^the right to hold a liquor license.
    3. The court of quarter sessions has the power to revoke a retail liquor license granted to an alien upon his representation that he was a naturalized citizen of the United States; and this is so although such representation may have been made in good faith.
    Submitted Nov. 15, 1909.
    Appeal, No. 85, April T., 1910, by J. R. Trimble, from order of Q. S. Beaver Co., June T., 1909, No. 16, revoking a liquor license and refusing a transfer in re Revocation of License of J. R. Trimble.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to revoke liquor license.
    Petition to transfer liquor license.
    Holt, P. J., filed the following opinion:
    This is a proceeding to revoke the retail license granted to J. R. Trimble on March 5, 1909, to keep a hotel in the first ward of the borough of Rochester, in this county.
    The petition was presented by D. C. Braden, county detective of Beaver county; it avers that at the time the said license was granted, the said J. R. Trimble was not a citizen of the United States, which is the only ground alleged in said petition for the revocation of said license.
    The respondent has filed an answer to the petition, in which he avers that he was born in the township of Darlington, Province of Ontario, Dominion of Canada, on November 18, 1855; that he came to the United States in the year 1875, returned to the Dominion of Canada in 1876, and again came to the United States in the year 1886, locating permanently at Mount Clemens, Macomb county, Michigan; that on November 1, 1887, in the circuit court for Macomb county, in said state, he declared his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to the Queen of Great Britain, of whom he had been a subject; that at that time he was registered in the said county of Macomb, and was a qualified voter in that place from the time of his registration until his removal to Beaver county, Pennsylvania, in March, 1907, and enjoyed and exercised all the rights and privileges of a citizen; that art. VII of the constitution of the state of Michigan,, as amended in the year 1894,. reads as follows:

      “Section 1. In all elections .... every male inhabitant of foreign birth, who, having resided in the state two years and six months prior to the eighth day of November, one thousand eight hundred ninety-four, and having declared his intention to become a citizen of the United States two years and six months prior to said last named day .... shall be an elector and entitled to vote at any election,” etc.
    That he having renounced allegiance to the queen of Great Britain, of whom he had formerly been a subject, and declared his intention to become a citizen of the United States, fully believed that he had complied with all the requirements of the law in becoming a citizen of the United States of America; that he was actually a citizen of the state of Michigan, and being such, was necessarily a citizen of the state of Pennsylvania and of the United States when he changed his place of residence to the state of Pennsylvania, and that the respondent filed in the United States district court, at Pittsburg, Pennsylvania, on August 10, 1909, his petition for final naturalization papers.
    A time and place for hearing was fixed and hearing had on Monday, August 16, 1909. From the evidence produced, it appears that under the constitution and laws of the state of Michigan, every male inhabitant of foreign birth, who, having resided in the said state of Michigan two years and six months prior to November 8, 1894, and having declared his intention to become a citizen of the United States two years and six months prior to said last-named day, shall be an eléctor and entitled to vote, provided that he is above the age of twenty-one years, and has resided in the said state six months, and in the township or ward in which he offers to vote, twenty days next preceding such election, arid that he is eligible to be elected to and hold office in the said state, except iri certain cases where the constitution or laws provide that the incumbent must be a citizen of the United States. It also appears from the evidence that such person is entitled to enjoy all the rights and privileges, commercially, that are enjoyed by citizens of the United States, and that the license laws of the state of Michigan do not require one to be a citizen of the United States to be eligible to hold a liquor license. It also appears that the respondent, on November 1, 1887, in the circuit court of the county of Macomb, in the state of Michigan, declared his intention to become a citizen of the United States; but he has not been naturalized in accordance with the laws of congress relating to naturalization, and that during the time he resided in the state of Michigan, he voted at elections and held licenses to sell liquor at various hotels which he conducted.
    We find from the evidence at the time the respondent made his application for the license in question, he firmly believed he was a citizen of the United States, and entitled to receive a license under our laws; and that he was not aware of the fact that his declaration of intention, aforesaid, did not entitle him to citizenship, and the enjoyment of the rights of a citizen of the United States of America. The hotel conducted by the respondent is one of the best hotels in the county of Beaver, and the ability of the respondent to conduct it is beyond question.
    At the hearing, a petition was presented by Noah G. May-hew for a transfer of the license of the respondent. This petition sets forth, among other things, that the petitioner has purchased from the said J. R. Trimble the lease which the said Trimble holds as lessee on the said hotel property, fixtures and furniture contained therein together with said license, provided a transfer of the same can be obtained.
    There are two questions in this case for our consideration: (a) Whether or not J. R. Trimble was at the time said license was granted a citizen of the United States within the meaning of our license laws; and (b) whether or not the license heretofore granted to him can be transferred upon the petition of said Noah G. Mayhew.
    Section 2 of the Act of May 13, 1887, P. L: 108, reads as follows: “ Licenses for the sale of vinous, spirituous, malt, or brewed liquors at retail, in quantities not exceeding one quart, shall only be granted to citizens of the United States of temperate habits and good moral character.” Section 5, of the same act, prescribes the form of petition to be presented for a license to sell such liquors at retail, and the third requisite to be set forth in such petition is, “The place of birth of said applicant, and if a naturalized citizen, where and when naturalized.”
    Was the respondent at the time the license was granted a citizen of the United States as contemplated by this act of assembly? It has been held in several cases that a state cannot confer citizenship upon one who has only declared his intention to become a citizen of the United States.
    A foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has never complied with any other provision of the naturalization laws, is none the less an alien because of the fact that the constitution and laws of the state wherein he resides have conferred the elective franchise and other privileges of citizenship on foreign subjects who have declared their intention to be naturalized, and.that he has actually voted in such state for national, state and county officers: City of Minneapolis v. Reum, 56 Fed. Repr. 576.
    Every person at his birth is presumptively a citizen, or subject of the state of his nativity. To the land of his birth he owes support and allegiance, and from it he is entitled to the civil and political rights and privileges of a citizen or subject. This relation, imposed by birth, is presumed to continue until a change of nationality is proved: Minor v. Happersett, 88 U. S. 162. A change of nationality cannot be made by the individual at will. Each nation has the right to refuse to grant the rights and privileges of citizenship to all persons not born upon its soil, and, if it determines to admit them to those rights and privileges, it may fix the terms upon which they shall be conferred upon him. Naturalization is the admission of a foreign subject or citizen into the political body of a nation, and the bestowal upon him of the quality of a citizen or subject.
    The fourteenth amendment to the constitution of the United States provides, that “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are eitizens of the United States, and of the state wherein they reside.” As the respondent was born in the Dominion of Canada, he is presumed to be a British subject, and not a citizen of the United States, until naturalized therein. The laws of the United States prescribe the conditions upon compliance with which an alien may become a citizen of this nation. The act of congress of April 14, 1802, Rev. Stat., sec. 2165, provides that an alien may be admitted to become a citizen of the United States in the following manner and not otherwise: First. He shall, two years at least prior to his admission, declare before a proper court his intention to become a citizen of the United States, and to renounce his allegiance to the potentate or sovereignty of which he may be at the time a citizen or subject. Second. He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts having jurisdiction in such cases, that he will support the constitution of the United States, and that he'absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state or sovereignty; and particularly, by name, to the prince, potentate, state or sovereignty of which he was before a citizen or subject, which proceeding shall be recorded by the clerk of the court. Third. It shall be made to appear to the satisfaction of the court' admitting such alien, that he has resided in the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence. The act of June 29, 1906, U. S. Statutes, chap. 3592, has imposed upon an applicant for naturalization additional requirements.
    The respondent takes the position that the constitution and laws of the state of Michigan having granted to him practically all the privileges that citizens of the state of Michigan enjoy, he thereupon became a citizen of the United States, and that when he came to the state of Pennsylvania he was entitled to all the rights of a citizen of the United States in this state, and that as such he is entitled to hold a liquor license under the laws of Pennsylvania. A state may confer on foreign citizens or subjects all the rights and privileges it has the power to bestow, but, when it has done all this, it has not naturalized them. They are foreign citizens or subjects still, within the meaning of the constitution and laws of the United States. The power to naturalize foreign subjects or citizens was one of the powers expressly granted by the states to the national government: City of Minneapolis v. Reum, supra.
    By sec. 8, art. I, of the constitution of the United States, it was provided, that “the Congress shall have the power to establish a uniform rule of naturalization.” Congress has exercised this power, established the rule, and expressly declared that foreign-born residents may be naturalized by a compliance with it, and not otherwise. This power, like the power to regulate commerce among the states, was carved out of the general sovereign power held by the states when this nation was formed and granted by the constitution to the congress of the United States. It thus vested exclusively in congress, and no power remained in the states to vary or change the rule of naturalization congress established, or to authorize any foreign subject to denationalize himself, and become a citizen of the United States, without a compliance with the conditions congress has prescribed: Dred Scott v. Sandford, 60 U. S. 393; Boyd v. Nebraska, 143 U. S. 135. The result is, that the power granted congress by art. I, sec. 8, of the constitution of the United States to establish a uniform rule of naturalization, is exclusive; naturalization laws enacted by congress in the exercise of this power constitute the only rule by which a foreign subject may become a citizen of the United States, or of the state, within the meaning of the Federal constitution and laws. It is not in the power of the state to denationalize a foreign subject who has not complied with the federal naturalization laws, and constitute him a citizen of the United States or of the state.
    “A foreign subject who is qualified to become a citizen of the United States under sec. 2167 of the Revised Statutes, does not become such by filing a declaration of intention so to do. That section requires that he shall renounce allegiance to the sovereignty of which he is a subject, and comply with the other conditions prescribed in the second and third paragraphs of section 2165 of the Revised Statutes, in order to become naturalized; and until he does so, he remains a foreign subject:” City of Minneapolis v. Reum, 56 Fed. Repr. 576.
    A state cannot make a subject of a foreign government a citizen of the United States. This can only be done in the mode provided by the naturalization laws of congress. Citi-. zenship and the right to vote are neither identical nor inseparable; and the constitution of the state, although it authorizes resident unnaturalized foreigners to vote at state elections and hold office does not make them citizens of the state, although they may have resided in such state for many years, and voted at elections as authorized, by the state constitution, and held office under the laws of such state:” Lanz v. Randall et al., 14 Fed. Cas. 8,080.
    In the case just cited, the plaintiff was born a subject of the Grand Duke of Mecklenburg, and came to the state of Minnesota, where he had resided for about fifteen years prior to the decision of that case. Shortly after his arrival in the state, he made his declaration of intention with a view of naturalization, but he never applied for or obtained the final certificate of naturalization. He had several times voted at elections held in the state, and the constitution of the state . authorized him to do so without naturalization. He was also qualified to hold office by the state constitution. The question in that case was whether such person in the state of Minnesota was to be regarded as a citizen, or a subject of Mecklenburg within the meaning of the constitution, art. Ill, sec. 2. Judge Miller, of the circuit court, among other things, said: “I am of opinion that no state can make the subject of a foreign prince a citizen of the state in any other mode than that provided by the naturalization laws of Congress; and that when the Constitution (art. I, sec. 8) says that Congress shall have power 'to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States/ it designed these rules by which the citizen or subject of a foreign government could become a citizen or subject of one of the states of this Union, and thereby owe allegiance to such state, and to the United States, and cease to owe it to his former government:” Lanz v. Randall et al., 14 Fed. Cas. 8,080.
    The language of the constitution of the state of .Minnesota, 'in conferring the right to vote upon resident aliens, is very similar to the language of the constitution of the state of Michigan conferring the like right. Judge Miller, while he held that no state had the power to confer citizenship, also held that he did not place the decision in that case on such ground. He said the state of Minnesota had not attempted in that case to make the plaintiff in said case a citizen of that state, nor did the provisions of the constitution of the state, when applied to the condition of the plaintiff therein, have that effect; that when aliens have taken the first step toward becoming citizens, by mailing the legal and official declaration to that effect they are allowed to vote, if they possess the other qualifications of age, sex and residence; but citizenship is not one of them. For in conferring such right the framers of the constitution of the state of Minnesota had no intention of maldng a citizen of a foreigner. In concluding the opinion in that case, Judge Miller said: “I am of the opinion, then, that nothing in the Constitution of Minnesota, or in the acts of plaintiff under it, has made, or was intended to make, him a citizen of that State, even if it be within the constitutional power of the state so to do.”
    Referring to the case at bar, we are of the opinion that the constitution of the state of Michigan did not make the respondent in this case a citizen of that State, and that he was, during his residence in that state, and that he has been since his removal to this state, a British subject, and an alien within the meaning of our constitution and laws. Having reached this conclusion, it is our opinion that he is not entitled to hold a retail liquor license under the laws of the state of Pennsylvania, and that the court was without jurisdiction to confer such privilege upon him; the license having, therefore, been improvidently granted should be revoked.
    We are not without precedent in the state of Pennsylvania for the conclusion we have reached. In Hoy’s License, 3 Montg. Co. L. R. 188, it was held that the holder of a liquor license must be a citizen of the United States, and that when such license is improvidently granted to one not a citizen, such license upon application will be revoked. “ One who has simply declared his intention to become a citizen of the United States is not entitled to a license:” Barrett’s License, 26 Pa. C. C. Rep. 178.
    As to the second proposition, is there, first, anything to which the petition to transfer can attach, and, second, has the petitioner for a transfer complied with the law relating to transfers of licenses?
    A transfer necessarily presupposes the existence of something to transfer, and to which the petition can attach. A license must have been lawfully granted before there is anything to transfer: Daniel’s Case, 31 Pa. Superior Ct. 156; Haye’s Case, 18 Phila. 456.
    The second section of the act of 1887, specifically says that licenses for the sale of liquor shall only be granted to citizens of the United States. The court was without jurisdiction to grant a license to an alien. To transfer this license would be to presume its legality.
    Transfers of liquor licenses are provided for by statute. There are two acts in force in relation to such transfers. One is the Act of April 20, 1858, P. L. 365, the seventh section of which reads, in part, as follows: “No license to vend the liquors aforesaid, granted under this or any other law of this Commonwealth, shall be transferable, or confer any right to sell the same in any other house than is mentioned herein; nor shall any bar or place where such liquor is sold by less measure than one quart be underlet by the person licensed to sell thereat; but if the party licensed shall die, remove or cease to keep such house, his, her, or their license may be transferred, by the authority granting the same, or a license be granted the successor of such party for the remainder of the year, by the proper authority, on compliance with the requisitions of the law in all respects, except publication, which shall not in such cases be required,” etc. Under the provisions of this statute a license may be transferred, or a new license granted to the successor of a person who has died, removed or ceased to keep the house to which the license was granted. It has also been held that in case of insolvency, so that the licensee may be said to be no longer in a position to keep the house, his license may be transferred either with or without his consent. Also, where the holder of a license has by his conduct forfeited his right to the license, it may be transferred at the instance of the owner of the premises to another: Umholtz’s License, 191 Pa. 177; Teller’s License, 3 Pa. C. C. Rep. 235; Heilig’s License, 2 Pa. Dist. Rep. 342; Hedrick’s License, 30 Pa. C. C. Rep. 109.
    The petition for a transfer of the license in this case does not present any of the grounds mentioned in the act of 1858.
    The other act in relation to transfers is the Act of May 17, 1901, P. L. 263, the first section of which reads in part as follows: “The judges of the several courts of the Commonwealth having authority under existing laws to grant licenses for the sale of vinous, spirituous, malt or brewed liquors, are hereby authorized to transfer such licenses from one person to another, or from one place to another within the same precinct, ward, city, or borough, as the court may determine.” The act of 1901, is an amendment of the first section of the Act of July 15, 1897, P. L. 297. The petitioner asks that a transfer of the license of the respondent be made on the ground that he has purchased the lease held by the respondent, the personal property and fixtures in the said hotel, and the said license. The petition, therefore, comes within the meaning of the act of July 15, 1897, as amended by the act of May 17, 1901.
    The second section of the act of July 15, 1897, reads as follows: “Application for any such transfer shall be filed in the office of the clerk of Quarter Sessions of the proper county ten days before the said petition shall be presented to the Court or the judge thereof; and upon the expiration of the said ten days, the clerk of said Court of Quarter Sessions shall certify that the application for said transfer has been on file in his office for the period of time required by the Act; provided, however, that in case of death of the licensee such transfer shall be made forthwith on petition, without preliminary or interlocutory order and without publication of notice.” The petition does not appear to have been placed on file and certified by the clerk as required by the said act of July 15, 1897, but was presented in the first instance to the court the day of the hearing on the rule to revoke said license. This was not a compliance with the statute.
    December 20, 1909:
    ORDER.
    Now, August 24, 1909, the order made March 5, 1909, granting unto the respondent a license, is revoked, and the respondent is directed to return the certificate or license which he holds to the clerk of this court for cancellation. And it is further ordered that the petition, of Noah G. Mayhew for a transfer of the said license be and the same is hereby dismissed.

      Errors assigned were the orders of the court.

      John B. McClure, for appellant.

      J. Blaine McGoun, for appellee.
   Per Curiam,

On the day of the hearing in the quarter sessions of the rule to show cause why the retail liquor license granted to J. R. Trimble should not be revoked, Nathaniel Mayhew presented a petition to have the license transferred to him: One of the reasons assigned by the court for dismissing the latter petition was that the statutory provisions relative to the transfer of licenses had not been complied with. The petition is not printed in the appellant’s paper-book, and there is nothing in any part of the record that is printed from which it may be implied that J. R. Trimble is such party aggrieved by that order as is entitled to appeal therefrom. Nor is there anything in the record to show that the above reason assigned by the learned judge was not well founded. This is all that we need say relative to the assignments bearing upon the dismissal of the petition of Nathaniel Mayhew.

Upon the questions, (a) whether, according to his own showing, J. R. Trimble was a citizen of the United States within the true intent and meaning of sec. 2 of the Act of May 13, 1887, P. L. 108, and (b) whether the court of quarter sessions has authority, after due hearing, to revoke a retail liquor license granted to an alien in violation of that section of the act, where it was granted upon his representation that he was a naturalized citizen of the United States, we all concur in the conclusions reached by the learned judge below. They are well supported by the reasoning of his opinion, and nothing can be profitably added by us to the discussion.

The order is affirmed.


text:
    Deliaven’s Estate.

      Statute of limitations — Charge on land — Acts of March 27,1713,1 Sm. L. 76, and April 27, 1855, P. L. 368 — Demand or acknowledgment within twenty-one years — Findings of fact.

    1. The character and weight of evidence required to rebut the presumption of payment of a charge upon land is under the Act of April 27, 1855, P. L. 368, very different from that required to establish a new claim or cause of action where there has been an absolute bar to recovery under the statute of limitations of March 27,1713,1 Sm. L. 76. Under the act of 1855 all that is necessary to prove to rebut the presumption that a charge on land had been paid is, that within twenty-one years a claim or demand had been made by the claimant, or payment, declaration or acknowledgment of the existence of the claim had been made by the debtor.
    2. A finding by the orphans' court based upon competent evidence that a claim or demand had been made for the payment of a charge upon land within twenty-one years, and a payment on account or acknowledgment of the existence of the claim had been made by the debtor within the same period, will not be reversed by the appellate court in the absence of manifest error.

      Courts — Jurisdiction—Supreme Court — Superior Court.

    3. The Superior Court has no power to review the action of the Supreme Court in directing that an adjudication of the orphans’ court should be open so that additional testimony might be taken.
    Argued Nov. 11, 1908.
    December 20, 1909:
    Appeal, No. 8, Oct. T., 1908, by defendant, from decree of O. C. Lancaster Co., May T., 1902, No. 10, dismissing exceptions to adjudication in Estate of Azariah DeHaven, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication. Before Smith, P. J.
    From the record it appeared that the question involved was whether a charge of $2,000 on land had been paid or was barred by the Act of April 27, 1855, P. L. 368.
    The facts of the case appear by the opinion of the Superior Court.

      Error assigned was decree dismissing exceptions to adjudication.

      B. F. Davis, for appellant.

      W. H. Roland and W. W. Franklin, for appellee.
   Opinion by

Beaver, J.,

This case has had an unusual and, in some respects, a rather remarkable course. It has been heard thrice in this court. An opinion was first handed down December 19, 1903, which does not seem to have been reported, probably for the reason, as explained in DeHaven’s Est., 25 Pa. Superior Ct. 507, that “When the case was formerly argued and submitted no reference whatever was made by the learned counsel for the exceptants to the Act of April 27, 1855, P. L. 368, and in the opinion which we filed on December 19, 1903, the said act was not considered, nor was it contended by the counsel that the claim in disputé was in any way controlled by said act. Therefore, our decision then made was upon the question of sufficient evidence to overcome the presumption of payment arising after the lapse of twenty-one years.”

Notwithstanding the fact that the Act of April 27, 1855, P. L. 368, had not been invoked in the court below, it was considered upon the reargument here that we were bound by the act of assembly and were not at liberty to disregard it, notwithstanding the fact that its provisions had not been invoked below. It was urged by the appellee at that time that the statute of 1855, not having been pleaded in the court below, could not be then interposed, but, as is clearly shown, an act of assembly not pleaded is different from a question of law not raised in the court below, and, relying upon Wingett’s App., 122 Pa. 486, it was determined that the act of 1855 applied and that, therefore, presumption of payment of the claim of the appellee — then and now — -was raised by failure of evidence of a demand on the one hand or an explicit acknowledgment on the other.

Upon application to the Supreme Court, an appeal from our decision was allowed, which, upon hearing, was determined adversely to the appellant and our judgment was affirmed upon the opinion of our Brother Morrison: DeHaven’s Est., 215 Pa. 549. Subsequently, upon application to the court below to have distribution made, in accordance with the decree of the Superior Court, the claimant, who is the appellee here and was the appellant in the Supreme Court, was permitted to call witnesses to prove demand for, or acknowledgment of, the claim within the period of twenty-one years. An application was then made to the Supreme Court to reopen the case and, on hearing, an order was made, permitting “John B. Miller, administrator, to submit proof of acknowledgment of the claim of his decedent” and subsequently, on March 7, 1907, the order was enjarged, so as to allow the appellant to submit evidence of acknowledgments that the claim was paid. This practically opened the entire question and permitted a hearing de novo. Upon testimony submitted by both sides, the court held that the testimony taken upon the hearing in the reaudit established a demand by the claimant and acknowledgment by the decedent of the claim of the present appellee and awarded the amount of the said claim to the claimant. From that adjudication and decree, an appeal has been taken by the parties who were appellants in the case when previously before us.

Although the question is practically the same now as then, it arises under entirely different circumstances, the testimony in regard to demand by the claimant and acknowledgment by the decedent raising the distinct question as to whether or not the presumption of payment under the act of 1855 is .rebutted, there having been no evidence upon that subject when the case was here before.

The counsel for the appellant fails to distinguish between what we call the statute of limitations, namely, sec. 1 of the Act of March 27, 1713, 1 Sm. L. 76, and the seventh section of the Act of April 27, 1855, P. L. 368. In the former, certain personal actions therein specifically set forth are absolutely barred by the lapse of six years. By the latter “where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable.” In the appellant's argument here the authorities cited relate for the most part to the statute of limitations, and we are asked to determine that the same character and weight of evidence is required to establish the claim or rebut the presumption of payment under the act of 1855 as is required to establish a new claim or cause of action where there has been an absolute bar to recovery under the statute of limitations. But the authorities relating to the one are not in any way applicable to the other except perhaps by way of analogy. New acts of assembly have received a greater number of authoritative adjudications by our appellate courts than the statute of limitations of 1713, but they are in no sense applicable to the act of 1855. In the latter case, the presumption of payment is raised by the lapse of twenty-one years. If, however, claim or demand, has been made by the claimant, or payment, declaration or acknowledgment of the existence of the claim shall have been made by the debtor, that presumption is rebutted. Clay v. McCreanor, 9 Pa. Superior Ct. 433, was cited in our previous decision as authority as to whom the acknowledgment is to be made, but it does not apply.

The question, therefore, which arose in the court below, and which we are called upon to consider .here, is, Was there claim or, demand made by the claimant, now represented by the appellee here, or was there any payment on account of the claim, or any declaration or acknowledgment of the existence thereof by the decedent, who is represented by the appellant here, within the period of twenty-one years?

The testimony upon this subject was somewhat conflicting. The court below found as- a fact, upon a careful analysis of the testimony, referring to the character, appearance and surroundings of the witnesses, that the presumption of payment arising from the lapse of time had been rebutted. In the opinion overruling the exceptions to the findings of the court below in the.audit, it is said: "By authority of the Supreme Court given by their modified decree, the audit was reopened for the purpose of taking testimony relating to payment of the charge on the land and an acknowledgment of its existence. The testimony previously taken was, offered in evidence — only as much, however, as was applicable to the question was admissible and only such was considered. There had been sufficient evidence without that offered at the time the audit was reopened to satisfy both the Superior and lower courts that the presumption of payment had been rebutted. That, together with what has since been submitted, was ample to establish the fact that Azariah DeHaven had not paid the charge, that within twenty-one years, payment, claim or demand was made on account of it, and that within that time he acknowledged its existence, without considering Wanner’s testimony.

“Exceptants' counsel argues that preponderance of testimony must control, and would have preponderance measured by the majority rule. Because exceptant had the greater number of witnesses, therefore, and necessarily, his contention- must prevail in his argument. The evidence which carried conviction preponderated. The frank testimony of a truthful witness may preponderate, though a dozen affirm differently.''

Upon a careful examination of the testimony, we are not convinced that the court below misinterpreted the effect thereof, nor are we convinced that in the careful analysis of the testimony and of the surroundings of the witnesses, the adjudicating judge failed to reach a correct conclusion. We are, therefore, disposed to follow the general rule as to the finding of fact by an auditor or an adjudicating judge, confirmed after exceptions and argument upon a careful consideration. We are unable, therefore, to reach the conclusion which would justify us in overturning the finding of fact deliberately made and confirmed, upon competent and sufficient testimony, by the court below. We have no hesitation in saying that, if the question here were whether or not the appellee had shown, by competent and sufficient testimony,- what would establish a new and distinct promise such as would support an action upon a claim barred by the statute of limitations, the testimony would not have been sufficient. This is the question, for the most part, argued by the appellant, but it is not the question before us. We repeat, in order to be clearly understood, that the question here is, Was there claim or demand made by the claimant or was there payment, declaration or acknowledgment of the existence of the claim by the debtor which rebutted the presumption of the existence of the claim, which made it irrecoverable? Authorities arising under the statute of limitations are abundantly cited by the appellant, but have no application whatever to the question under consideration except as hereinbefore intimated. The appellant continually refers to the bar of the statute and speaks of the act of April 27, 1855, as the bar of the statute of limitations. This is only another mode of misapprehending the question and misapplying the well-understood names of statutes, which have had centuries of interpretation and application, to those of comparatively modern enactment which are essentially different in character and scope.

The appellant proposes, as one of the questions involved in the case, “Whether the Supreme Court had the right to order a reopening of the adjudication, without the record before it.” It is scarcely necessary to say that this is a question which does not properly come before us. The Supreme Court is the best authority to determine its own jurisdiction, and the manner in which its authority is to be exercised. The time to raise that question was when the case was before the Supreme Court for argument and determination.

Upon the entire case, as presented to us, we are of opinion that the decree of the court below should be affirmed.

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


author: Head, J., Rice, P. J.,

text:
    Bos, Appellant, v. People’s National Bank of Tarentum.

      Banks and banking — Fraud on depositor — Evidence—Case for jury.

    1. In an action by an illiterate depositor against a bank to recover the amount of his deposit, the case is for the jury where the testimony of the plaintiff himself tends to show that he was misled by the representations of an officer in charge of one of the departments of the bank, into accepting the individual obligation of the officer under the belief that he was receiving an obligation of the bank for the repayment of his deposit with interest thereon.
    2. In such a case the plaintiff cannot prove by another witness, that in an independent transaction the same bank officer had undertaken to defraud the witness in a manner similar to the way in which the plaintiff had been defrauded.
    Argued April 26, 1909.
    Appeal, No. 145, April T., 1909, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. .278, on verdict for defendant in case of Stefan Bos v. People’s National Bank of Tarentum.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Assumpsit to recover the amount of a bank deposit. Before Swearingen, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court gave binding instructions for defendant.
    When Paul Sodoma was on the stand, the plaintiff made the following offer:
    Mr. Maxey: Counsel for plaintiff offers to prove by the witness on the stand, Paul Sodoma, that he is a resident of Arnold, and that he is acquainted with Joseph J. Sirkush, cashier of the defendant bank; that he was in the bank a short time prior to March 22,1906, for the purpose of depositing money therein; that Sirkush then and there advised the witness that he could get a larger rate of interest for his money in this bank than elsewhere, and that if he would allow him to place $200 of it in a certain account in the bank, that he could get six per cent interest, and come around every one-half year; and that Sirkush, further, did take the money from the witness, saying that the bank was out of deposit books, and handed the witness a piece of paper, saying to witness that it was a memorandum of his deposit in the bank and would answer the purpose of a book; that witness subsequently learned that it was a promissory note of said Sirkush and that upon so ascertaining, he made an effort to collect the same, and subsequently did, by criminal proceedings, recover from Sirkush the money represented by the note. This, for the purpose of showing that Sirkush, the agent and cashier of this bank, had committed some fraudulent acts at about the same time, and tending to show a motive for a particular line of conduct, to wit: that the agent, Sirkush, was actuated by a motive to defraud.
    Mr. Me Vicar: Objected to as incompetent, irrelevant and immaterial; that any evidence of fraudulent representations made to either person is not any evidence of fraud alleged in this case.

      The Court: Objection sustained.
    Exception noted and bill sealed for plaintiff. [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in giving binding instructions for defendant; (2) ruling on evidence, quoting the bill of exceptions.

      W. 8. Maxey, for appellant.
    The testimony of the plaintiff being that at the time the transfer of the money was made, Sirkush privately represented to plaintiff that he was giving him a memoranda of the transfer of his money to another account in the bank, and that the paper which was handed to plaintiff was such a memoranda, when, in fact, it was not, imports a question of fraud, which must be proven like any other fact: Green v. North Buffalo Township, 56 Pa. 110; Schuylkill County v. Copley, 67 Pa. 386; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; El Dorado Jewelry Co. v. Hartung, 36 Pa. Superior Ct. 463; Young v. Edwards, 72 Pa. 257; Braunschweiger v. Waits, 179 Pa. 47; Com. to use v. Julius, 173 Pa. 322; Ettinger v. Jones, 139 Pa. 218; Ziegler v. Bank, 93 Pa. 393.

      Nelson McVicar, of Kennedy, McVicar & Hazlett, for appellee.
    The quality of the evidence required to avoid the contract made with Sirkush is that it must be clear, precise and indubitable: Hicks v. Harbison-Walker Co., 212 Pa. 437; Highlands v. R. R. Co., 209 Pa. 286.
    The quantity of the evidence required to avoid the contract with Sirkush is the testimony of two witnesses or one witness and corroborating, circumstances equivalent to another: Fuller v. Law, 207 Pa. 101; Sutch’s Est., 201 Pa. 305.
    The rule is the same whether the party defrauded can read or write the English language. In either case he does not depend upon what is in the instrument, but relies on what is said to him: Hicks v. Harbison-Walker Co., 212 Pa. 437; Penna. R. R. Co. v. Shay, 82 Pa. 198; Sylvius v. Kosek, 117 Pa. 67.
    The offer of the alleged testimony of Paul Sodoma was incompetent and irrelevant: Smith v. Arsenal Bank, 104 Pa. 518; Mundis v. Emig, 171 Pa. 417; Keeler Co. v. Schott, 1 Pa. Superior Ct. 458.
    December 13, 1909:
   Opinion by

Head, J.,

At the conclusion of the trial the learned judge below directed the jury to return a verdict in favor of the defendant and afterwards entered judgment thereon. Had the testimony introduced by the plaintiff been submitted to the jury and been accepted by them as credible, they would have been warranted in finding the following facts:

The plaintiff is a foreigner, unable to speak or understand the English language, and so illiterate that he cannot read or write even in the tongue wherein he was born. He had been living and working for some years in the vicinity where the defendant bank is located. The bank, desiring to acquire and retain the patronage of the foreigners working in the neighborhood, had created a special department for the purpose of dealing with them, and this was presided over and conducted by a special cashier or agent named Sirkush, who was able to transact business with them in their own language.

Some two years after he began to do business at the bank, he went there to make a deposit and was induced by the manager to sign with his mark a withdrawal order — the equivalent of a check in an ordinary banking transaction — for $500. His testimony is that he received no money whatever at that time, and had no intention of withdrawing any money from the bank. He declares that in the bank, and while transacting his business as a depositor with Sirkush, he was told by the latter that the bank paid a higher rate of interest on moneys which would be deposited in another department of the bank; that he could avail himself- of the opportunity to draw a higher rate of interest by attaching his mark to a paper which Sirkush prepared and presented to him, and on the strength of this statement, and for the purpose, as he supposed, of changing his deposit from one department of the bank to another, he attached his mark to the paper prepared and presented by Sirkush.

The latter then told him that his interest would be payable every six months, and gave him a paper which he represented as being a receipt from the bank for the money thus specially deposited, which receipt the plaintiff was to carefully keep and present at the bank at the expiration of six months, when his interest would fall due and be paid to him.

In the following September the plaintiff, who in the meantime had been continuing to deposit small sums in the bank and to withdraw some of them from time to time as his necessities required, went to the bank, presented his paper to Sirkush, who paid to him $15.00, being six months’ interest at six per cent on $500; took up the original paper and gave to him a new one of the same kind, with similar instructions concerning it. This paper the plaintiff again kept for six months and again presented it at the bank to receive his interest as before. He then learned that Sirkush had left the service of the bank, and for the first time was informed by the officer who had succeeded him that the paper which he held was no obligation of the bank, but was merely an individual promissory note of Sirkush, the former officer.

He was told that on the strength of the'paper which he had signed the year before, which was a regular withdrawal order, the bank had charged to his account the $500 represented by it, and that he must look to Sirkush, who had obtained the money, for payment. The bank offered to make an effort to collect this money from Sirkush, and for that purpose the note was left there, but being unable to collect the money, and refusing to recognize the plaintiff’s right to have it frpm the bank, this suit was begun.

It will be observed the plaintiff rests his claim on the undeniable fact that the relation of depositor and banker had been established between the parties; that the money for which he now sues had been deposited in the defendant bank, and that the latter had never paid it over to him in discharge of its legal obligation to pay that sum upon his demand. We may here remark that the testimony of the plaintiff on some of the important points already noted was contradicted, but with this we have no concern in the face of the directed verdict against him,'

The bank, by way of defense, set up the withdrawal order signed by the plaintiff with his mark, on the strength of which it had paid out his money and charged it to his account. To this the plaintiff replied that the paper was not his act; that it had been procured by gross fraud and misrepresentation on the part of the bank officer who obtained it, and that under such circumstances the bank could not shield itself behind the fraud of its officer, and thus escape the obligation which would otherwise rest upon it.

The learned trial judge was of the opinion that the conditions thus existing left the plaintiff in the situation of one who was seeking the aid of a chancellor to reform a written instrument executed by him. That inasmuch as he was unable to support his claim by testimony other than his own, and as that testimony was contradicted by the bank officer and the papers made during the transaction, the evidence could not be said to be of that clear, precise and indubitable character necessary to bring about the reformation of a written instrument. If the learned judge was correct in this conception of the attitude which the plaintiff thus occupied in relation to the case, his conclusion would be doubtless supported by the cases which he cites in his opinion refusing the motion for a new trial.

It appears to us, however, that upon the main question involved, our Supreme Court has so clearly decided that in such case the testimony of the plaintiff must carry the question of fraud to the jury, that there is but little room left for a discussion of it along the line of elementary principles.

In Steckel v. First National Bank of Allentown, 93 Pa. 376, it appeared that one William H. Blumer was the president of the bank, and his son Jacob was the cashier. “ Three of the directors, including the said William H. Blumer, composed the banking house of William H. Blumer & Co. which carried on business but a few hundred feet distant from the First National Bank of Allentown. The plaintiffs having money on deposit with the bank, and being desirous of obtaining interest bearing certificates therefor, called at the bank for that purpose.’!' The plaintiffs then testified — and it does not appear from the report of the case that there was any other evidence on the subject except that of one of their own number — that he asked the teller whether or not the First National Bank issued certificates of deposit and paid interest thereon, and his answer was “Yes.” “ Then I came there again in September, 1876, and made my ordinary deposit in the bank; and after we were through, I said to the teller that I would take the First National Bank certificates for $700; I filled out a check, and he handed me a certificate. I asked him, ‘ Is this .the First National Bank certificate? ’ The answer was, Yes, sir, it is.' I then said,1 This reads Blumer & Co.; I want this distinctly understood, I want nothing but the First National Bank certificate.’ He assured me that this was one and the same thing. With this assurance, I took that certificate. This was in the presence of the cashier of the bank, Jacob A. Blumer.” The ■ firm of Blumer & Co. became insolvent, and the bank refusing to recognize its liability on the certificate mentioned and other like ones which followed it, the plaintiffs brought their action against the bank to recover the amount of their deposits.

Upon that state of facts the learned trial judge was of the opinion that there was no sufficient testimony to submit to the jury to warrant a finding that the bank was liable for the payment of the moneys evidenced by the certificates, and directed a verdict for the defendant. In reversing this judgment, Mr. Justice Paxson, speaking for the court, says: “We must assume that the jury would have found the facts as testified to by the plaintiff Steckel. The facts established, we have a case of palpable fraud. It is not an answer to say the plaintiffs ought not to have been deceived, and, with ordinary care, would not have been. The fact that the Blumers were respectively president and cashier of the National Bank, as well as leading members of the banking-house of Blumer & Co., was calculated to mislead and deceive; and when told in positive terms that the certificates, although signed by Blumer &• Co., were the certificates of the bank, the plaintiffs may readily have believed it was all right. . . . There is no doubt as to the general rule that an agent can only bind his principal so long as he acts within the scope of his authority; but we do not think the principle applies in this case. A bank is responsible for the safe-keeping of the money of a depositor, and it cannot set up the fraud of its own officers as an answer to a demand for repayment. Public policy forbids it.

“ The plaintiffs, after ascertaining the fraudulent character of the transaction, tendered the certificate to the bank, and demanded the payment of their original deposit. In other words, they rescinded the contract on the ground of fraud. If their allegations are true, they had a right to do so, and proceed upon the original cause of action. The question of fraud should have been submitted to the jury.”

It will be observed that in the foregoing case the plaintiff was an intelligent man, and was able to read and did read the certificate which was handed to him, and to discover from such reading that the paper did not purport on its face to be an obligation of the National Bank, but appeared to be that of a private firm. Nevertheless, because that paper was given to him in the bank by a bank officer, in the transaction of what appeared to be the regular business of the bank, and because the plaintiff relied upon the assurance then and there given him by such officer, it was held that his case should have gone to the jury on his testimony.

In the companion case of Ziegler against the same bank, reported in the same volume, 93 Pa. 393, we have a case still more exactly like the one at bar in the fact that the plaintiff was an illiterate man, unable to read the certificate which was handed to him. At the trial of that case the plaintiff offered to prove by his own testimony substantially the facts already recited at length in the former case, and that he accepted the certificates which turned out to be those of Blumer & Oo. on the strength of the representations of the bank’s officer that they were the certificates of the bank. The learned trial court rejected the testimony and directed a verdict for the defendant. In reversing that judgment, the Supreme Court, again speaking through Mr. Justice Paxson, said: “When the plaintiff took his money to the First National Bank of Allentown, and handed it to the cashier for deposit, the bank became responsible therefor. The cashier was the executive officer of the bank, and authorized by the very nature of his office to receive money on deposit. After receiving it, no trick or fraud on his part, by means of which the money was passed over to Blumer & Co., a firm in which the bank officers were largely interested, and appeared to have had the control, could absolve the bank from its liability. No class of men have the confidence of the people to a greater extent than bank officials. It would be monstrous to allow them to take advantage of the ignorant and unwary, by reason of their position and the confidence which it inspires. It was doubtless a misfortune to this bank to have unworthy officials, if such should prove to be the case. It certainly was unwise to permit its chief officers to occupy a dual position with divided interests, but the consequences resulting therefrom cannot be visited upon those who dealt in good faith with the bank.

“ This case is ruled in a great measure by Steckel v. Bank, 93 Pa. 376. It was error to reject the evidence contained in the plaintiff’s offer. The facts offered to be proved amounted to a fraud upon the plaintiff, and he was entitled to have that question passed upon by a jury.”

Here then in two distinct and emphatic utterances by the Supreme Court it has been declared that where a plaintiff sqes for his deposit, and declares that the check (or withdrawal order), which he signed against the deposit, was procured by the bank officers and given in exchange for some paper upon which one or more of the bank officers w^ere liable, but which was falsely represented by those officers to be the obligations of the bank, the testimony of the plaintiff asserting that such a fraud was practiced is sufficient to carry the case to the jury.

Two years later in Bank v. Williams, 100 Pa. 123, an action was begun against the same bank, and the plaintiff there sought to recover by the application to his case of the principles enunciated in the two cases already cited. The Supreme Court, in distinguishing the last case from the two former ones, reasserted the principle upon which those decisions rested in the following language: “There is, however, a marked distinction between the cases. In those cited there was a positive assertion on the part of the bank officers that the certificates in question were the certificates of the bank, and this assertion was made under circumstances which rendered it at least probable the parties were misled by it. We therefore held there was a question of fraud which ought to have been submitted to the jury.''

In the present case the testimony of the plaintiff tended to show that he was misled by the representations of the bank officers, whilst engaged in the service of the bank, into accepting the individual obligation of the officer under the belief that he was receiving an obligation of the bank for the repayment of his deposit with interest thereon. We are impelled to the conclusion that this was the same fraud, perpetrated in the same manner, that is disclosed by the record of the cases already cited, and upon their authority we must hold that the learned trial court should have submitted this testimony to the jury. In reaching this conclusion we in no wise intend to impair or weaken the force of the rule prescribing the quantity and quality of evidence necessary to reform a written instrument. Nor do we intend to declare, as we are asked to do, that a bank occupies such a relation of trust or confidence towards its depositor, that the law casts upon it the burden of proving that each of the multitude of daily transactions between it and its depositors, was conscionable, done in good faith, etc. We but adhere to the doctrine of stare decisis and recognize the binding authority of the decisions of the Supreme Court declared in cases which exhibit no substantial difference from the case at bar. The first and third assignments of error must be sustained.

By the testimony, the rejection of which constitutes the remaining assignment, the plaintiff sought to prove by another witness that, in an independent transaction, the same bank officer had undertaken to defraud him in a manner similar to that in the present case. Even if true, it is not apparent how this would tend to prove that this plaintiff, in the transaction he had with the bank, was defrauded. Moreover, the ascertainment of its truth would involve an inquiry into an issue wholly collateral to the one now before us. We think therefore the learned trial judge was correct in rejecting that offer, and the second assignment is dismissed.

Judgment reversed and a venire facias de novo awarded.

Rice, P. J.,

dissenting:

I am constrained to dissent from the opinion of my brethren, and to conclude that the judgment of the court below should be affirmed for the reasons given by its learned president judge.


author: Head, J.,

text:
    Dzmura v. Gyurik, Appellant.

      Easement — Vendor and vendee — Sewer—Equity.
    Where an owner of land subjects part of it to an open, visible, permanent, and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be. This is the general rule founded on the principle that a man shall not derogate from his own grant. Anyone taking the servient tenement, takes it subject to such easement; and if he attempts to interfere with its use, a court of equity has jurisdiction to restrain him, when the facts are undisputed as to the right.
    Argued May 6, 1909.
    Appeal, No. 206, April T., 1909, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1908, No. 793, on bill in equity in case of Elijas Dzmura and Aligo Dzmura, his wife, v. Michael Gyurik.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding injunction.

      John Rebman, Jr., with him A. B. Stevenson, for appellants.
    The plaintiffs’ right to the sewer easement must be clear, otherwise they must establish it first by an action at law. Mowday v. Moore, 133 Pa. 598; Alexander v. Harris, 40 Legal Int. 132; Fitzell v. Philadelphia, 211 Pa. 1; Penna. Coal & Coke Co. v. Jones, 30 Pa. Superior Ct. 358; Liquid Carbonic Co. v. Wallace, 219 Pa. 457; Woodroffe v. Hagerty, 35 Pa. Superior Ct. 576; Richards’s App., 57 Pa. 105.
    December 13, 1909:

      Francis S. Bennett, for appellees,
    cited: Grace M. E. Church v. Dobbins, 153 Pa. 294; Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540; Vollmer’s App., 61 Pa. 118; Milne’s App., 81 Pa. 54: Bitting’s App., 105 Pa. 517; Manbeck v. Jones, 190 Pa. 171.
   Opinion by

Head, J.,

John Gyurik, the common ancestor in title of all the parties to this bill, was the owner of a lot of ground in the borough of Braddock fronting thirty feet on Washington street and extending back of the same width 110 feet to a public alley. Having concluded to permanently improve his property, he built two structures thereon, one fronting the street, the other the alley in the rear. Each building covered its respective front, and each occupied a depth of thirty feet. Each of the said buildings was so designed by him as to make, when completed, two separate tenements, so that each building could be occupied and used by two separate tenants. The wall which in each building divided it was used as a party wall for the joint benefit of the tenement on each side. The front building facing the street was so constructed that on the ground floor a small area way three feet in width gave access from the rear of the lot to each apartment. There was a public sewer in the alley at the rear of the premises. The common owner of the entire property could have, by separate lines of sewers, connected each of the four tenements with this public sewer. Not desiring to incur the expense which this would involve, he built but one sewer line from the alley in the rear to the building on the front part of the lot. This line was laid a short distance from and parallel to the west line of his property, and traversed the cellars of the two tenements, front and rear, on the west side of his property. The tenements on the east side, front and back respectively, were connected bjr lateral lines with this main sewer, and in this manner each one of the four tenements was provided with a line for the disposal of its sewage.

By this general plan of improvement it was apparent that each of the tenements had the common use of a party wall, and the like use of the main sewage line, and all of these incidents of the general plan of improvement were open and visible to the eye of anyone who might become the purchaser or occupant of any one of the tenements. The lateral sewage lines already referred to, by which the tenements on the east side of the lot, front and back, were connected with the main line to the alley, necessarily crossed a portion of the property upon which the western tenements stood. It is apparent then that the common owner of the property, for the purpose of utilizing it as he conceived to the best advantage, had subjected the tenements, front and rear on the west side of his property, to an easement for sewage purposes in favor of those on the eastern part of the property.

If, with his property thus improved, John Gyurik had sold and conveyed to a purchaser the eastern tenement, front or rear, on his property, even though in his deed he may not have expressly granted an easement in favor of the property conveyed over that which he retained, the purchaser would nevertheless take such an easement because that was a part of the permanent improvement which he had made- upon his property, and his conveyance of the land would carry with it the permanent improvements as he had created them and as they visibly existed on the ground.

The principle of law operating on such a state of facts and producing the conclusion above referred to is thus stated by Mr. Justice Mitchell in Grace M. E. Church v. Dobbins, 153 Pa. 294: “The law on this subject is settled beyond question. Where an owner of land subjects part of it to an open, visible, permanent, and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be. This is the general rule founded on the principle that a man shall not derogate from his own grant.”

When John Gyurik, therefore, so designed the permanent improvement on his own property that the easternmost tenements were provided with the necessary outlet for sewage by a visible lateral line extending through the cellars of the westernmost tenements respectively, in order to reach the main outlet to the alley, if he thereafter conveyed to another that easternmost tenement, he could not be heard to complain that his purchaser continued to vent the sewage from that tenement in the way which the grantor himself had expressly provided for that purpose. If he could not be heard to complain, and would not be permitted to interfere with such right, the defendants stand in precisely the same situation because they have succeeded to his title with a full knowledge of all the facts already recited.

When the present defendant undertook to cut the sewerage connection from the eastern tenement, now owned by the plaintiffs, the latter filed their bill which resulted in the injunction of which the appellant now complains. The able counsel for the appellant confined their argument chiefly to the proposition that this bill should be dismissed because a court of equity had no jurisdiction to enter the decree complained of. They base their argument on the proposition that the right of the plaintiffs to enjoy this easement is seriously disputed, and until such right had been determined in their favor by an action at law, a court of equity would be without jurisdiction.

It has been said so often by our appellate courts that it may now be considered as an elementary principle, that a court of equity will not by an injunctive decree enforce an alleged legal right, where the existence of such right is in dispute, until after it has been determined in an action at law that such right really exists. Notwithstanding the fact in later years the jurisdiction of courts of equity has developed to meet the necessities which come with changed conditions, it is still true that when the property rights of a citizen are fairly questioned, his privilege is to have those rights determined in a common-law action after a trial by a jury. But it is equally true that where the facts out of which the alleged right must arise, if it exists at all, are undisputed and depend upon the application to those facts of certain fixed principles of law, there is no dispute to be settled by a legal trial.

This is the situation presented by this record. There is not in dispute a single fact on which the right of the plaintiffs to have their decree rests. The learned court below was therefore correct in determining that a court of equity had jurisdiction to enforce for the plaintiffs those rights which depended entirely on the application of the law to the facts averred in the bill and not denied in the answer.

We further agree with him in his conclusion that the dominant question in the case is controlled by the legal principle declared by Mr. Justice Mitchell in the case already cited. Under such circumstances the decree compelling the defendant to restore the broken sewer connection and restraining him from thereafter interfering with it was nothing more than securing to the plaintiffs the unmolested enjoyment of the land they had bought with the permanent improvements thereon as they had been constructed by John Gyurik, and had since existed with the full knowledge of all the parties concerned.

The fact that Mary Gyurik, the immediate predecessor in title of the plaintiffs — probably in ignorance of her rights under the law, perhaps to avoid the possibility of the litigation that has resulted in this appeal — asked the defendant to sign a paper recognizing her right to maintain the sewer connection and that he refused to do so, was, as the court held, irrelevant. It destroyed no legal right that existed in her, it created none not previously existing in him.

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