author: Head, J.,

text:
    Caldwell v. United States Express Company, Appellant.

      Evidence — Striking out of testimony — Discretion of trial fudge — Trial— Practice, C. P.

    Where one of several plaintiffs testifies without objection and without cross-examination, and the plaintiffs rest their case, the appellate court will not review the discretion of the trial judge in refusing subsequently to strike out the testimony, because it was based on the record of the firm not made by the witness personally.

      Carriers — Common carriers — Declaration as to value — Disguise of package — Fraud.
    In an action against a carrier to recover for loss of a package of jewelry, where there is no evidence of any attempt to disguise the package, and the evidence is conflicting as to whether the shipper at the instigation of the owner did or did not refuse to inform the carrier of the contents of the package, or value of the same, although requested to do so, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained.
    A shipper is not obliged as a condition precedent to his right to recover, to volunteer information as to the contents or value of a package, if no inquiry is made.
    Argued Dec. 9, 1907.
    Appeal, No. 39, Oct.’ T., 1907, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2,883, on verdict for plaintiff in case of Albert Caldwell et al., trading as J. E. Caldwell & Company, to the use of J. Albert Caldwell et al., trading as J. E. Caldwell & Company, v. United States Express Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover for loss of package of jewelry. Before Stáake, J.
    The court charged in part as follows;
    Now, the claim in this case as you know is brought by the firm of J. E. Caldwell & Company, the well-known jewelers of this city, against the United States Express Company, and it is to recover the value of one sapphire ring, $100, one ruby ring valued at $100, one diamond ring valued at $170 and another ring of the value of $145, making the total $515. They aver that they are jewelers and silversmiths engaged in business in Philadelphia and that the defendant is a common carrier engaged in the transportation of merchandise and valuables, and it is admitted by both sides that on January -5, 1903, such a package as has been described to you was given into the care of the defendant company to be conveyed to the firm of Caldwell & Company, in the city of Philadelphia. Therefore, there is no question in the ease as to whether the express company did receive the package and 'that the package was consigned to J. E. Caldwell & Company, Philadelphia. It is rather singular to the court that in the trial of this case we are left absolutely without any information as to what was paid by anybody for the actual handling of this particular package; whether it was a large amount or a small amount. My recollection is that there is no testimony upon that point, but of course if I am wrong in this your better recollection will correct me, as you must determine what the facts are in the case. The receipt in evidence fails to show us what was paid, and I recollect no testimony regarding that point.
    Now, the court charges you that a common carrier cannot, of its own volition, by simply printing terms or conditions, limit such liability as it would otherwise have in a case of this kind. A familiar instance of that is the ordinary case of the attempt of a railroad company to limit its liability by imposing conditions sometimes printed upon its tickets. A common carrier cannot so limit its liability. Therefore, so far as the mere limiting of its liability to the sum of $50.00, if the value is not given, the court charges you as to that, that such limitation is not available as a defense in this case, but there comes a further defense which is, after all, the important question, which I will leave to you to determine, and that is, whether in this transaction, in the delivery of this package by Mrs. Richmond L. Jones, in the city of Reading, at her home on Fifth street, there was such a disguising of the package, suph efforts at concealment, as made the conduct of Mrs. Jones at that time a fraud upon the express company.

      It. is admitted as I understand from the argument of the learned counsel for the plaintiff, that if there had been a wrapping of a small package in a large piece of cloth, as was the fact in one of the cases submitted by counsel for defendant, and this was handed over to the express company as an ordinary piece of merchandise, with the intention of concealing the fact that in the interior recesses of that package there was a valuable diamond ring or any article of that kind, that, undoubtedly, would be an intentional effort to deceive the company as to the contents, or the nature of the package which the company was asked to carry: There are two things which you must consider in determining whether there was or was not such a fraud committed in this particular case. One of those things is the nature and character of the package in question. The other is, what actually took place, in connection with the delivery of the package. [It was undoubtedly the duty of the common carrier in this case to inquire as to the contents of the package, to ask for a declaration of value. Now, what did actually transpire? Of course, the best evidence is possibly the testimony of the lady herself, who shipped the package, and she tells you in the evidence that has been submitted to you:] [5]
    “Q. Did you ship this package yourself? A. I gave it to Harvey, my butler. Q. Did you give him any instruction about declaring the value to the express agent? A. No, sir, I did not. I never do. In fact, I am often not here when the package is given to the expressman. Q. As a matter of fact, didn’t you tell your butler not to declare a value upon the package, as requested in Caldwell & Co.’s memorandum? A. No, sir, I would not have done that. I didn’t think they meant anything of that kind. I thought it was for my accommodation, so I wouldn’t have any bother about it, Q. I just want the fact as to whether you did or not. A. No, sir. If I had been asked, of course I would have put the value on; if anybody had asked me, if Harvey had asked me, of course I would have put the value on it. Q. But you did not in point of fact? A. I did not. Q. You did not have any conversation with the express agent for this package, did you, about shipping the package? A. No, sir. I was upstairs. I don’t think anybody did. Q. Will you kindly describe how this package was wrapped? A. When they sent it they had it wrapped and sealed, sealing-wax with their seal on it; but of course that is always too much trouble for me, I wouldn’t do that, so I kept the same paper, and wrapped it up the same way, and tied it with the same twine, or just exactly as it was, only it wasn’t sealed like they sent it; but I never seal anything. Q. Was there 'anything on the wrapper as you sent it to denote the value of the package? A. No, sir, there wasn’t except the name; that would be a temptation to a great many people. I thought since you are speaking about it, that wouldn’t make much difference to them, because everyone knows their name and the business they are in. But I never knew there was any danger in express companies; I thought that when I gave it to an express company it was safe; I was surprised. Q. Do you know whether or not this package was delivered to J. E. Caldwell & Co.?”
    The answer to that question is not very important. It is admitted that the package was not delivered, and was never found, although you have heard what efforts were made by the express company to locate it. The company’s memorandum spoken of by Mrs. Jones was the memorandum which has been referred to saying that in returning these goods she was not to place any value on them, as all their goods were insured.
    Mrs. Jones handed the package to her butler, Harvey Scott, and he testified:
    “Q. Do you remember handing to the express agent of the U. S. Express Co. who called here on January 5, a package addressed to J. E. Caldwell & Co., Phila.? A. I do, yes, sir. Q. Who gave you that package? A. Mrs. Jones. Q. What did she say to you when she handed it to you? A. Before the man came, she told me to telephone to the U. S. Express Co., which I did, and they came, and of course the package and basket at the same time were ready when they called. Q. About what time of the day was this when they called? A. Well, as near as I can tell, I suppose between ten and eleven o’clock, around that time; I couldn’t say exactly what time it was. Q. Did you know the contents of the package to be shipped to Caldwell & Company? A. No, sir. Q. Did Mrs. Jones say anything to you about answering the driver’s question, if he would make any, as to the value of the contents? A. No, sir. Q. Didn’t she instruct you not to declare the value of the package to the driver if he asked for the same? A. No, sir, not at the present time. Q. What do you mean by that, at the present time? A. Well, when I first came to the house Mrs. Jones always told me what to do in regard to sending packages, that is, in taking the receipt and so on. Q. Did she give you any general instructions, then, about not declaring the value of the package? A. No, sir. Q. Did you declare a value on this package shipped to Caldwell & Co.? A. No, sir. Q. Was there anything said about the package which would denote that it was a valuable one? A. I couldn’t say that. I simply took the package from Mrs. Jones and took it right to the door. I never looked at it, as far as denoting the value of the package is concerned; I saw it was Caldwell & Co., and that is all.”
    The man Hain who signed the receipt says: “At the time, I was driving a team extra just for a few days and that is the reason I recall it. I was on the team that delivers goods from the city office to the depot, and all such goods are waybilled out of the city office and put off at the platform.”
    This witness described the package and I think we may say that it has been generally described as a package about six by four inches in size and two inches deep. Hain says that he went to 105 North Fifth street and “brought an empty basket and a package — an ordinary looking package wrapped up in dark brown paper. It didn’t look to me as if it was anything valuable. It was an ordinary small package about that big square” (indicating).
    This witness further says: “I wrote the receipt and asked them if there was any value on it and the colored man told me that Mrs. Jones said they need not — or the Mrs. said you need not place any value on it — so I gave him the receipt and just simply run my pencil through the receipt where the value is. I should have put ‘Value asked and not given/ but I didn’t do that. I took the package and basket to the office at the depot.
    “Q. Was there any evidence of sealing wax on the wrapping paper? A. No, not the slightest. Q. The only thing written on it was J. E. Caldwell & Company? A. Yes. Q. Did you know at that time who J. E. Caldwell & Company were? A. No, at that time I didn’t know who they were.”
    That testimony, gentlemen, you will recollect in connection with the testimony of Mr. Lilly and Mr. Campbell who said that when they interviewed Mrs. Jones she said that she did not put any value on the package because it had been suggested to her that it was «not necessary to put any value on.
    [I shall leave the question entirely to you in this case, to determine whether under the facts as you have heard them testified to, there was in what transpired at the time of the actual delivery of this package between Mrs. Jones and Harvey Scott and Harvey Scott and the driver, or in the manner of wrapping up this particular package, such evidence as satisfies your mind that there was a deliberate and intentional effort upon the part of J. E. Caldwell & Company, the original shippers, or on the part of Mrs. Jones, so far as she represented them in sending this package back to Caldwell & Company, an intention to defraud.] [6] That is, whether the facts amount to a fraudulent concealment of things which this company ought to know. If you find that the evidence does satisfy your minds that there was a fraudulent concealment, and that the company was thereby defrauded, I charge you that your verdict should be for the defendant. If, on the other hand, you believe that this package, wrapped as it was, in exactly the same box, the same paper, tied with the same twine or string, and lacking only the sealing-wax — was not such a fraudulent concealment of facts Which this company ought to have known, then you will be warranted in finding a verdict for the plaintiff.
    Verdict and judgment for plaintiff for $425. Defendant appealed.

      July 15, 1908:

      Errors assigned among others were (1) refusal to strike out testimony referred to in the opinion of the Superior Court; (5, 6) above instructions, quoting them; and (19) refusal of binding instructions for defendant.

      James F. Campbell, for appellant. —
    It was the duty of the shipper to declare the contents or value in a case such as this even if not asked: Camden, etc., R. R. Co. v. Baldauf, 16 Pa. 67; Phillips v. Earle, 25 Mass. 182; Relf v. Rapp, 3 W. & S. 21; Coxe v. Heisley, 19 Pa. 243; Edelsohn v. U. S. Express Co., 4 Lack. Jur. 61; Southern Express Co. v. Everett, 37 Ga. 688; Oppenheimer & Co. v. U. S. Express Co., 69 Ill. 62; Warner v. Western Transportation Co., 28 N. Y. Super. Ct. 490; Gorham Mfg. Co. v. Fargo, 35 N. Y. Super. Ct. 434.
    When the carriage of goods is secured by some fraud upop the carrier practiced by the shipper, the carrier does not occupy the position of a common carrier with regard to the goods: Gibbon v. Paynton, 4 Burrows, 2298; Chicago & Aurora R. R. Co. v. Thompson, 19 Ill. 578; Batson v. Donovan, 4 B. & Ald. 21; Southern Express Co. v. Everett, 37 Ga. 688.

      James Wilson Bayard, with him John G. Johnson, for appellees.
   Opinion by

Head, J.,

In this action the plaintiffs seek to recover from the defendant, a common carrier, the value of a package of jewelry delivered to it in the city of Reading for carriage to them in the city of Philadelphia. In its affidavit of defense the defendant admitted “having received at Reading, Pennsylvania, on January 5, 1903, a package consigned to plaintiffs at Philadelphia, and that said package was lost, stolen or mislaid while in the custody of the defendant.” Had there been nothing else in the case the jury would have been warranted, under all of the authorities, in rendering a verdict for the plaintiffs for the value of the package. This value was testified to by one of the plaintiffs, and as, apparently, there was ho real controversy on this question of fact, his testimony was received without objection, the witness dismissed without cross-examination and the plaintiffs rested their case. On the following day it appeared that the testimony of the witness was based on the records of the firm not made by him personally. The court was then asked to strike out his evidence but refused to do so, and this refusal is assigned for error. We think the motion to strike out, under the circumstances, was, at most, but an appeal to the discretion of the trial judge and we are unable to say that discretion was abused. The assignment is dismissed.

The réal defense set up to avoid the liability that, prima facie, would flow from the undisputed facts already adverted to, is disclosed in the following averments contained in the affidavit of defense: “The facts in connection with said shipment are that Mrs. Richmond L. Jones of Reading requested plaintiffs to express to her, on approval, several jeweled rings, with which said request plaintiffs complied. In the package containing said rings was a request signed by plaintiffs to the effect that when Mrs. Jones returned said rings to do so in a plain wrapper and not to disclose the contents or value thereof to the express company. . . . The said Mrs. Jones in returning the said rings refused to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested, and the same was shipped and received as a package of small value and handled accordingly. ... As plaintiffs perpetrated a fraud upon the company, in requesting the consignor to conceal the true contents and value of said package,” the limited liability clause in the contract of shipment should be enforced and the recovery confined to the $50.00 therein mentioned.

We may concede, as an abstract legal proposition, that where a shipper, without any intention to defraud, but through ignorance, carelessness, or other like cause, so prepares his valuable goods for shipment, as to delude even the reasonably careful agents of the carrier into the belief they are not of any especial value, he may not afterwards recover such especial value in case of loss. This is founded in reason and justice because such conduct, on the part of a shipper, even though not immoral because not consciously wrong, results in the same injurious consequences to the carrier, as if it had been the offspring of an intention to defraud, “for it goes to deprive the carrier of the compensation he is entitled to, in proportion to the value of the article intrusted to his care and the consequent risk he incurs; and it tends to lessen the vigilance the carrier would otherwise bestow:" Relf v. Rapp, 3 Watts & S. 21.

We are unable, however, to discover, either in the pleadings or evidence, anything that should have demanded, at the hands of the learned trial court, a discussion of this legal principle or warranted its application to the facts of the case. The issue of fact tendered in the affidavit of defense did not assert, even by implication, that the shipper had so carelessly or improperly prepared her package for shipment that the defendant was fairly and reasonably induced to believe that it was of but little value. And had such facts been averred they would have been wholly without support in the evidence because it was not denied that the rings had been returned packed in the same box, wrapped in the same paper in which they had been sent down, and that the package, so prepared, was plainly addressed to the plaintiffs, a long established and well-known firm of jewelers and silversmiths in the city of Philadelphia.

The defense actually set up was that the shipper had perpetrated a willful and intentional fraud on the express company in that she “refused to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested;” and that the plaintiffs should be visited with the consequences of such misconduct by her because she acted under their direction and for their benefit. Upon the issue of fact thus tendered the case went to trial and the parties produced their testimony. It was conflicting. In submitting the question to the jury the learned trial court said, inter alia, “I shall leave the question entirely to you, in this case, to determine whether, under the facts as you have heard them testified to, there was, in what transpired at the time of the actual delivery of this package between Mrs. Jones and Harvey Scott (her servant) and Harvey Scott and the driver (the defendant’s agent), or in the manner of wrapping up this particular package, such evidence as satisfies your mind that there was a deliberate and intentional effort upon the part of J. E. Caldwell & Co., the original shippers, or on the part of Mrs. Jones, so far as she represented them in sending this package back, an intention to defraud. That is whether the facts amounted to a fraudulent concealment of things which this company ought to know. If you find that the evidence does satisfy your minds that there was a fraudulent concealment and that the company was thereby defrauded, your verdict should be for the defendant.” That the shipper was not obliged, as a condition precedent to plaintiffs' right to recover, to volunteer - information as to the contents or value of the package, if no inquiry was made, seems to be conceded-as the following quotation from the opinion of Mr. Justice Rogers in Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67, printed in appellant’s brief, will show: “It is proper here to remark that neither concealment nor fraud can be imputed to the plaintiff. He was not bound to disclose the nature or character of the goods unless inquired of by the carrier, in which case he must answer truly. ”

Did the shipper then, under direction of the plaintiffs, “refuse to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested?” If she did, manifestly a willful and intentional act of concealment, amounting to a fraud, was practiced on the defendant. Upon its ability to establish its averment of fact just quoted the defendant rested its defense. The evidence was conflicting, and a submission to the jury was necessary. Under the instruction previously quoted and the answers to defendant’s points, the jury were clearly given to understand that if they accepted the defendant’s evidence as to the conduct of the shipper, the plaintiffs’ right to~recover was gone. ■ If on the other hand they accepted the evidence of Mrs. Jones and her servant, then no wrong was done either by the shipper or the plaintiffs, the only defense set up had failed, and the prima facie case of the plaintiffs was in no way overcome.

We think it would be useless to consider separately the numerous assignments of error, many of which are in violation of our rules of court. The real question involved in the case is thus stated by the learned counsel for the appellant in the opening sentence of his brief: Whether or not one of the large jewelry firms of the United States can defraud an express company of its lawful charges by not declaring the value of a shipment, when asked, or by so disguising the shipment that there is nothing about it to denote its true value.” The jury have answered that there was no refusal to declare value when asked, and the record shows no trace of any attempt to disguise the package or that it was prepared in any other form than that usually assumed by like shipments. In our view the charge of the court truly directed the attention of the jury to the real issue and gave to the defendant the benefit of every legal principle it could fairly invoke in attempting to establish the single defense it set up.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Seligman v. Beecher, Appellant.

      Contract — Sale—Monthly deliveries — Failure to fill orders — Failure to give orders — Delay in filling orders — Damages.
    Where a contract is to deliver 240 carloads of timber during a year in quantities of twenty carloads a month to be shipped upon orders given by the purchaser to the seller, to places designated in the orders, the purchaser is the actor in the transaction, and if he fails to give orders for a number of carloads, it is, prima facie, not necessary for the seller in order to save himself from default, to tender such carloads at the purchaser’s residence or place of business. If, however, the seller expressly refuses to fill orders, which under the contract he was bound to fill, the purchaser is not under obligation to go through the idle form of giving orders in order to hold the seller for a breach of his contract to deliver 240 carloads during the year.
    If without valid excuse and in spite of the purchaser's repeated remonstrances, the seller fails to fill orders that are given, this might, under some circumstances, justify the purchaser in withholding further orders, and still hold the plaintiff for a breach of the contract; but in determining whether'the seller will be liable on that ground, it is necessary to consider what the purchaser’s conduct had been in giving and canceling orders. If in that particular there has been lax performance on his part, either in giving the full number of monthly orders, or in canceling without proper grounds, orders already given, he is not in a position to say that the seller’s delay in filling, or even failure to fill, some of the orders that he gave was a breach of the contract, which, without more entitled him to damages for the nondelivery of the carloads for which he gave no orders. If the evidence relating to the purchaser’s conduct is conflicting, the case is for the jury.
    Where a contract is to deliver a certain number of carloads of lumber during a year on monthly deliveries, the seller cannot justify his failure to fill orders because of inability to get cars, and because of unfavorable weather conditions, where the evidence shows that at the time he was complaining that he could not get cars, he was shipping a great many cars to other people, and that the same was true in the months in which he claims he was prevented from filling the orders by bad weather.
    Where a contract is to deliver a certain number of carloads of timber during a year by monthly deliveries, the seller cannot excuse a failure to fill orders promptly, because he was compelled to send the orders to a distant state, and have the timber cut, and because the orders in question would have to wait their turn when orders from other persons were ahead'. The contract being to deliver and not to cut and deliver, it is the seller’s duty to make such preparations and arrangements as will enable him to deliver within a reasonable time after the orders were given.
    In a case involving damages for a breach of contract, it is error for the trial judge to state to the jury that “you can adopt such estimate of damages as you think proper,” without instructing them as to the legal measure of damages that should guide them in determining what estimate it was proper for them to adopt.
    Argued Dec. 2, 1907.
    Appeal, No. 237, Oct. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., on verdict for plaintiff in case of S. G. Seligman, trading as Seligman & Co., v. J. W. Beecher.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Marr, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [If, after going over this evidence, you conclude that there has been a breach of this contract, if you find the contract was that there were to be 240 cars of lumber shipped by Mr. Seligman to Mr. Beecher during the year 1905, and that the monthly order was to be twenty, that whilst the monthly order was not given for twenty, yet Mr. Beecher’s explanation for not giving more is a proper one, and that his complaint is justified by the fact that the orders he did give Mr. Seligman were not filled, and therefore it was no use to give him more orders; that Mr. Beecher was complaining month after month to Mr. Seligman that his orders were not being filled, and that he would hold him responsible for any damages arising from that, if you find that is correct, and that there was neglect on the part of Mr. Seligman in 'filling the orders and shipping the timber, then you would be justified in saying that Mr. Seligman committed a breach of this contract, and the question then arises, what damages did Mr. Beecher suffer from that breach?] [1]
    [Take all of this evidence into consideration as to whether or not there was a breach of this contract on the part of Mr. Seligman, in other words, whether Mr. Seligman was neglecting to ship the prop timber as ordered by Mr. Beecher in what is called a fair, reasonable time. The orders would go to Mr. Seligman in Tamaqua; Mr. Seligman would have to send them down to Virginia. Then it would take some time before this timber could be brought out of the woods and shipped. That is apparent to every person. The question is one for you, whether Mr. Seligman did ship this timber in a reasonable time after it was ordered, or whether he let it hang to such an extent that Mr. Beecher was compelled, in order to protect himself, to go into the market and buy timber from other people or bring the timber from his own tract of land. After Mr. Seligman got these orders it was his duty to exercise reasonable diligence in sending them immediately to his camp in Virginia, or wherever he obtained his timber, then it was his duty to see that the men there promptly filled the orders. That is what his contract called for. And in carrying out that duty it is proper that he should have filled them in what might be called fair, reasonable time. The defendant contends that he did not do that, that five, six, seven, eight weeks, sometimes two or three months would pass by and yet the orders were not filled, that Mr. Seligman shipped just as he saw fit and for reasons best known to himself. This becomes a very important question in this case, because if Mr. Seligman after he received those orders did not fill them properly and shipped the timber in what you may consider a fair, reasonable time, and Mr. Beecher then was compelled, in order to keep his contracts with the collieries, to go into the market and buy timber from other people, or to go onto his own timber lands, wherever they were, and bring timber from them, then there would be a breach of this contract by Mr. Seligman, unless he gives some fair, reasonable explanation why it was not done. That is a question for you entirely.] [2]
    [It is for you to say if Mr. Seligman committed a breach of his contract in supplying this lumber what damages Mr. Beecher suffered; it is not for the court to say. Take into consideration the estimates given to you by the gentlemen on both sides. It is for you to say which is correct. If you find Mr. Beecher has suffered damages by the negligence and refusal of Mr. Seligman to carry out his contract, then how much is it? Take up these different estimates and you can adopt one or adopt the other or you can adopt such estimate of the damages as you think proper.] [3]
    Verdict and judgment for plaintiff for $605.19. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      Oiiy E. Farquhar and Wesley K. Woodbury, for appellant.—
    The terms of the contract in this case being undisputed, the law in relation to the duty of the parties to it is clearly defined. The contract was to deliver 240 carloads of timber at the rate of twenty cars per month. The only thing that was left undetermined was the place of delivery. Where the place of delivery is not mentioned in the contract, but the time is fixed, then the seller must be the actor and tender the articles agreed to be sold: Barr v. Myers, 3 W. & S. 295.

      July 15, 1908:
    The instruction as to damages was erroneous: Boden v. Irwin, 92 Pa. 345; Hoffman v. Railroad Co., 143 Pa. 503.

      R. H. Koch, for appellee.
   Opinion by

Rice, P. J.,

According to the testimony of both parties, the plaintiff agreed to deliver, and the defendant agreed to take and pay for, 240 carloads of prop timber during the year 1905, in quantities of twenty carloads a month at $4.70 per ton for one kind, and $4.85 per ton for another kind. In this action of assumpsit the plaintiff sued to recover the contract price for a certain number of carloads, and the defendant pleaded as a set-off damages in consequence of the plaintiff’s failure to deliver (1) a certain number of carloads for which he, the defendant, had given orders; (2) a certain number for which orders had not. been given at the time the plaintiff brought suit. In the contract as thus far stated the place of delivery was not expressly determined. Therefore, it is contended by appellant’s counsel upon the authority of Barr v. Myers, 3 W. & S. 295, it was incumbent on the plaintiff to tender the whole number of props within the time specified. It appears, however, by the course of dealing, by the plaintiff’s testimony which was not contradicted, and by defendant’s averment in his claim of set-off, that the timber was to be shipped upon orders, given by the defendant to the plaintiff, to the places designated in the orders. This being so, the deféndant was to become the actor in the transaction; therefore, so far as the number of carloads for which he did not give orders during the year is concerned, it was, prima facie, not necessary for the plaintiff, in order to save himself from default, to tender them at defendant’s residence or place of business. If, however, while still under obligation to fill the orders, up to the number of 240 carloads, which the defendant might give, the plaintiff expressly refused to go on with the contract, the defendant was not under obligation to go through the idle form of -giving orders in order to hold the plaintiff for a breach of his contract to. deliver 240 carloads during the year. So also, if without valid excuse and in spite of the defendant’s repeated remonstrances, the plaintiff failed to fill orders that were given, this might, under some circumstances, justify the defendant in withholding further orders, and still hold the plaintiff for a breach as above stated. But in determining whether the plaintiff would be liable upon that ground it would be necessary to consider what the defendant’s conduct had been in giving and earn celing orders. If in that particular there had been lax performance on his part — for example, unexcused failure from time to time to give the full number of monthly orders contemplated by the contract, or unwarranted cancellation of orders that were given — he was not in position to say that the plaintiff’s delay in filling, or even failure to fill, some of the orders that he gave was a breach of the contract, which, without more, entitled him to damages for the nondelivery of the carloads for which he gave no orders. Many facts, depending upon oral testimony not always in harmony, entered into that Question, and it would have been error for the court to withdraw it from the jury by binding direction that such breach was conclusively established. Upon this branch of the case we refer to the legal principles recognized in Forsyth v. North American Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301; Price v. Beach, 20 Pa. Superior Ct. 291; Cogley v. Browne, 11 W. N. C. 224; Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493.

But as to the orders that were given by the defendant, accepted by the plaintiff and not filled, a different question is presented. According to the plaintiff’s testimony, the defendant ordered from time to time during the year, 154 carloads, and canceled orders for twenty-one carloads, thus leaving orders for 133 carloads to be accounted for, of which forty-three were unfilled. Two of the reasons given for not filling these orders and for delay in filling others were inability to get cars and unfavorable weather conditions; but, as pointed out by the learned judge below, it was shown by the plaintiff's own record, to which he testified, that when he was complaining that he could not get cars he was shipping a great many cars to other people, and that the same was true in the months in which he claimed he was prevented from filling the orders by the bad weather. We think the learned judge should have instructed the jury that upon the plaintiff’s own showing, these were not valid legal excuses for his noncompliance with his contract. Again, the defendant claimed that he was compelled to cancel some of the orders, and to obtain the timber elsewhere so as to comply with his contracts, with other people, by the plaintiff’s unreasonable delay in filling them. The learned judge’s instructions, that the plaintiff was entitled to a reasonable time after the orders were given to deliver the timber to the persons and places designated therein, is not and cannot be seriously questioned; but it is contended that he erred in instructing the jury as to what could be considered by them in the determination of the question of reasonable time. Upon this subject the plaintiff testified: “after receiving the order we send the order south; it was then sent to our cutting ground and must take its rotation. If we have timber on the banks for other orders that came in previously, the timber on the banks must be moved into the cars before we can cut timber and put on the banks to fill these orders.” Again he testified, “We have not got timber ready cut.' We cut timber to order: It would not be possible to ship orders as fast as we get them.” There are portions of the instructions quoted in the second assignment of error which might well be taken by the jury as justifying them in considering the time required by the plaintiff, not only to forward the orders to his employees in Virginia, but also to cut the timber after they received them, as entering into the question of reasonable time. The manifest objections to this view are: that the contract was to deliver, not to cut and deliver, twenty carloads of timber a month; it was not a term in the contract that it should be taken from the plaintiff’s land and no other; the subject of the contract was not an article that could not be procured elsewhere; but, so far as appears, if the exigencies arising out of his contracts and dealings with other parties, or the time required to fell the trees, and convert them into prop timber made it impossible for the plaintiff to ship the timber promptly from his own lands, he could have obtained it in the market. Having undertaken to deliver twenty carloads a month as they were ordered, it was incumbent on him to make such preparations and arrangements as would enable him to comply with his contract; at least, the consequences resulting from his failure so to do cannot be visited upon the defendant. We are constrained to say, therefore, that there was error in these two particulars in the judge’s instructions quoted in the second assignment of error." And we remark in addition, that upon the question of breach we see no valid ground upon which it can be claimed by the plaintiff, that, so far as the orders accepted by him not canceled by the defendant and unfilled were concerned, there was not a breach of the contract. We are of opinion that' to that extent the court should have said to the jury there was a breach.

We are constrained also to the conclusion that the instructions complained of in the third assignment are open to criticism upon the ground that they seem, or might be so taken by the jury, to give them too wide a latitude in determining the questions for decision, particularly the question of damages. Of course, as the counsel for appellee well says, it was for the jury to determine what estimate of damages should be adopted by them; but the conclusion of these instructions with the remark “you can adopt such estimate of damages as you think proper,” unaccompanied by a clear statement of the legal measure of damages that should guide them in determining what estimate it was proper for them to adopt, had a tendency to mislead.

The complaint that the court submitted to the jury to determine whether there was a contract to deliver 240 carloads during the year in quantities of twenty carloads a month; is not well founded. There was no dispute as to these matters, as the appellant’s counsel well says, but viewing the charge as a whole, in the light of the testimony and the manner in which the case was tried, we are convinced that the jury could not have understood that either the existence or these terms of the contract were in dispute and that the determination of the question was submitted to' them. There is part of one sentence of the charge quoted in the first assignment that, taken by itself, might perhaps bear that construction, but. by express words in other portions of the charge, and throughout the entire charge by implication that could not be misunderstood, the learned judge told the jury that there was no dispute as to these matters.

The second and third assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.


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    Wood v. Chester Traction Company, Appellant.

      Negligence — Street railways — Passenger—Summer car — Standing on running board — Collision with wagon — Speed—Contributory negligence— Assumption of risk.

    A passenger who rides on a side step of a summer car when it is reasonably practicable for him to go inside the car, assumes all the risks of his position, and in all cases he assumes the risk incident to the usual swaying and jolting of the car and from collision with passing vehicles and obstructions of whatever nature which unexpectedly appear. These are dangers which cannot be guarded against by the careful and prudent management of the car.
    In an action by a passenger against a street railway company to recover damages for personal injuries, it appeared that plaintiff boarded a summer car, and being unable to enter on account of the crowd, stood on the running board next to the roadway. This was a smooth macadam road of a width of twenty feet, exclusive of the track, which was on one side. When the car reached the top of a hill and began a rapid descent, there was in plain view at a distance of from 400 to 600 feet an approaching wagon, drawn by one horse. At no time after the wagon came into view was it or any part of it on the track, but it was moving parallel with the track at a distance of from two to four feet therefrom. When it had come within a short distance of the wagon, the driver turned his horse’s head away from the car towards the center of the road, and began to move in that direction, when suddenly the horse balked and backed the rear wheel of the wagon into the side of the car then passing, thus injuring the plaintiff. Held, that plaintiff was not entitled to recover.
    Argued Nov. 21, 1907.
    Appeal, No. 186, Oct. T., 1907, by defendant, from judgment of C. P. Delaware Co., June T., 1906, No, 206, on verdict for plaintiff in case of John A. Wood v. Chester Traction Company.
    June 15, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for- personal injuries. Before Johnson, P. J.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $725. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Hannum, for appellant. —
    It is the firmly established law that a passenger who leaves the inside of a street car and stands upon the front platform or the running board of a car assumes the risk of his position: Thane v. Scranton Traction Co., 191 Pa. 249; Woodroffe v. Roxborough Ry. Co., 201 Pa. 521; Harding v. Phila. Rapid Transit Co., 217 Pa. 69; Patterson v. Phila. Rapid Transit Co., 218 Pa. 359.
    Does it change the rule if instead of having been inside the car the passenger was unable to get inside, and instead of waiting for another car, rides on the running board? We contend that, under the later cases decided by the Supreme Court, it does not: Bard v. Traction Co., 176 Pa. 97; Malpass v. Railway Co., 189 Pa. 599; Harding v. Phila. Rapid Transit Co., 217 Pa. 69; Deery v. Railroad Co., 163 Pa. 403; Federal St. & Pleasant Valley Ry. Co. v. Gibson, 96 Pa. 83; Dennis v. Railroad Co., 165 Pa. 624; Wood v. Penna. R. R. Co., 177 Pa. 306; Douglass v. Railroad Co., 209 Pa. 129; Fitzwater v. Fassett, 199 Pa. 442.

      O. B. Dickinson, for appellee.
   Opinion by

Head, J.,

The plaintiff sustained an injury while riding as a passenger on a summer car of the defendant company. When he boarded the car it was crowded and, being unable to enter, he stood on the running board on the side of the car next to the roadway upon which passing vehicles would travel. This roadway, exclusive of the defendant’s track which was on one side, was twenty feet wide and was a smooth macadam road. When the .car reached the top of Allen’s hill and began to descend, there was in plain view, at a distance of from 400 to 600 feet, an approaching wagon, drawn by one horse, there being two men and a boy in the wagon. At no time after, the wagon came into view was it or any part of. it on the defendant’s track, but it was moving parallel with the track at a distance of-from two to four feet therefrom. . Of course, the approaching car was in full view of the driver of the wagon. It must be considered as established by the testimony that the car was moving rapidly. When it had come within a short distance of the wagon the driver turned his horse’s head away from the car towards the center of the road and began to move in that direction, thus increasing the space between wagon and car, when suddenly the horse balked and backed the rear wheel of the wagon into the side of the car then passing. By this collision the plaintiff was injured. Taking the whole mass of the testimony, we think it may fairly be said that the facts, as stated, are not the subject of dispute.

The degree of responsibility assumed by a passenger who boards a trolley car and rides on the running board, and the measure of the company’s duty to him, under the conditions present in the case at bar, are clearly defined by Mr. Justice Fell, in Bumbear v. United Traction Co., 198 Pa. 198, as follows: “A passenger who rides on a side step when it is reasonably practicable for him to go inside the car, assumes all the risks of his position, and in all casés [the italics are ours] he assumes the risk incident to the usual swaying and jolting of the car and from collision with passing vehicles and with obstructions of whatever nature which unexpectedly appear. These are dangers which cannot be guarded against by the careful and prudent management of the car. But when the passenger by invitation of the conductor or with his knowledge and assent, and from necessity, because of the want of sitting or standing room inside the car, rides on the side step, he is entitled to the same degree of diligence to protect him from dangers which are known and may readily be guarded against as are other passengers.”

If a passenger, riding on the running board, “in all cases,” whether there be room inside or not, “assumes the risk . ... . from collision with passing vehicles and with obstructions of whatever nature which unexpectedly appear,” how may the plaintiff maintain an action for an injury resulting from precisely such a collision as is mentioned in the opinion cited? If he assumed that risk when he chose to ride in that place rather than wait for a less crowded car, the consequences of his assumption cannot, in justice, be transferred to the defendant company. It is true that in the case cited the plaintiff was permitted to recover under the existing facts. There the accident occurred at a point where the railway track was so close to the side of the street “as barely to leave room or a wagon to stand between it and the walls of a hotel building. At this place each morning during the summer, ice wagons stood while ice was delivered at the hotel. On the morning of the accident the hub of a wheel of an ice wagon was so near to the track as to project over the side step of the car. The motorman could have seen the position of the wagon when a square from it and he was signaled by the man in charge of the wagon to stop.” Here was a danger that not only could have been seen and known in time to guard against it, but the motorman was actually advised of it by the warning signal of the driver of the wagon. So in Brennan v. Traction Co., 27 Pa. Superior Ct. 188, the dangerous proximity of the pole to persons riding on the footboard was well known to the company and hence it was bound to use due diligence to protect even passengers thus riding, by its permission, from such a known and obvious danger. It is just at this vital point that the case before us differs radically from those cited. There was no known and obvious danger confronting the motorman of the car on which plaintiff was riding. His car and track were in good condition and his way stretched before his view absolutely unobstructed. Under such conditions it is difficult to conclude that the presence of speed is absence of care,. The driver of the wagon had a clear view of the approaching car whilst it traveled a considerable distance. He had ahead of him a broad, smooth and unobstructed road with ample room to enable him to get still farther from the rail than he had been. He undertook to do this when suddenly the unexpected happened; a new cause of trouble intervened, beyond the control of either the driver or the motorman, when the horse balked and backed his wagon into the passing car. We cannot see anything in these circumstances to warrant the conclusion that the danger of the horse thus acting was so plain and obvious that a careful motorman would have been bound to anticipate it.

Nor is it apparent to us how it can be fairly said that the speed of the car was the proximate cause, or indeed any cause at all, of the accident. Had it been moving a little faster than it was, it would have passed the point of collision before the wheels of the wagon reached there. And it is but the merest speculation to assert that had it been running at half of its actual speed, the horse would not have backed, or that the consequences of his doing so would have been less serious to the plaintiff.

Upon the whole record we are of opinion the learned court below should have directed a verdict for the defendant.

Judgment reversed.


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    Sherman, Appellant, v. Delaware & Atlantic Telegraph & Telephone Company.

      Equity — Equity jurisdiction — Discovery—Action at law — Demurrer— Fraud.

    A complainant in a bill in equity who was a defendant in an action at law has no standing to maintain a bill for discovery only, where it appears that he voluntarily, and to protect his interest terminated the action at law by paying the debt, interest and costs; nor is such a complainant entitled to a decree consolidating the action at law with the bill.

      Where a defendant in an action at law in order to protect his leasehold estate pays the debt, interest and costs, and does this voluntarily, and without having been subjected to fraud or duress, he cannot maintain a bill in equity to recover back the money.
    A general allegation of fraud in a bill in equity is insufficient, even upon demurrer, if the facts and circumstances relied upon to support the allegation do not constitute a fraud.
    A bill in equity by a tenant, which contains no allegation of facts sufficient, to establish fraud, will be dismissed, where the prayer is that the defendant be enjoined and restrained from proceeding before any justice of the peace or otherwise, to recover possession of the premises until the termination of the lease, so long as the plaintiff promptly pays when due, the rent secured thereby.
    Argued Nov. 21, 1907.
    Appeal, No. 153, Oct. T., 1907, by plaintiff, from decree of C. P. Chester Co., No. 472, in equity, dismissing bill in equity in case of Solomon Sherman v. The Delaware & Atlantic Telegraph & Telephone Company and Frank Mauran.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for discovery and an injunction.
    Hemphill, P. J., filed the following opinion:
    The question raised by the demurrer is: Do the facts averred and which must be treated as verity, entitle the plaintiff to the relief prayed for?
    The facts alleged are: That the plaintiff is the lessee and occupant of premises No. 120 East Market street, in the borough of West Chester, under a lease from Elizabeth G. Allen for a period of five years from April 1, 1904.
    The premises were subject to a judgment lien of $250, entered April 5, 1904, and marked to the use of Frank Mauran, of Philadelphia, on May 3, 1906. On May 21, 1906, in pursuance of a prior agreement, Elizabeth C. Allen and Brinton G. Allen, the owners, sold and conveyed said premises to the Delaware and Atlantic Telegraph and Telephone Company, for the sum of $4,000, deducting therefrom the principal and interest due on the judgment referred to and causing the same to be transferred and assigned to its .agent, Frank Mauran.

      On June 2, 1906, the said Frank Mauran issued a writ of scire facias on said judgment against the defendants named therein, and the Delaware and Atlantic Telegraph and Telephone Company and Solomon Sherman as terre-tenants.
    To this writ, Solomon Sherman, on June 19, 1906, made an affidavit of defense, in which, after setting out his leasing and occupancy of the premises and the sale and purchase of the same by the Delaware and Atlantic Telegraph and Telephone Company in the manner above set forth, he alleges that the said Frank Mauran has no right, title or interest in said judgment, paid no part of the consideration for the transfer of the same to him and is not entitled to revive the same, and that the proceeding is brought by him as the agent of the Delaware and Atlantic Telegraph and Telephone Company, for the purpose of depriving Solomon Sherman of his rights as lessee and not to recover the debt secured thereby, which has been fully paid.
    On July 20, 1906, the said Frank Mauran entered judgment by default against the defendants and the Delaware and Atlantic Telegraph and Telephone Company as terre-tenant, for $252.08, and said defendants and terre-tenant, afterwards waived condemnation; whereupon the plaintiff in order to preserve his possession of said premises paid to the said Frank Mauran $278.26 in full of said judgment debt, which was received by the attorneys of the Delaware and Atlantic Telegraph and Telephone Company.
    On September 21, 1906, the plaintiff filed a supplemental affidavit of defense, in which he avers that since the filing of his first affidavit of defense, a writ of fieri facias upon said judgment had been issued and the said premises levied upon; that the said Delaware and Atlantic Telegraph and Telephone Company waived inquisition thereon, and that in order to protect and defend his rights of possession of said real estate, he, on August 1,1906, paid to the sheriff of Chester county the sum of $278.26, in satisfaction and payment of the debt, interest and costs due on said judgment. That when the case (Mauran v. Allen) was placed upon the trial list, Mauran entered a rule to show cause why said case should not be stricken from the list, which was returnable December 10, 1906, when it was continued to March Term, 1907 — and then as the court records show, was made absolute.
    On December 20, 1906, the Delaware and Atlantic Telegraph and Telephone Company notified the plaintiff to vacate said premises on April 1, 1907, and the plaintiff avers that he is informed and believes that said company by its officers and agents have threatened and intend by force and fraud to eject him from said premises on April 1, 1907; that the action so threatened is by proceedings to recover possession' under the act of December 14, 1863, to be brought before a justice of the peace owned and controlled by said company, who will enter a fraudulent judgment in favor of said company and against said defendant, from which an appeal will not be a supersedeas to the warrant of possession to be issued thereon.
    Upon the foregoing facts and assumptions of the plaintiff, he prays for relief as follows:
    1. For discovery.
    2. That said defendant company be restrained from proceeding to recover possession of said premises until the termination of plaintiff’s lease (April 1,1909) so long as he promptly pays his rent when due.
    3. That this bill be consolidated with the proceedings of the scire facias sur judgment, No. 21, August Term, 1906, and if upon final hearing it be found that the amount of said judgment has been paid or deducted from the purchase money due Elizabeth C. Allen and Brinton G. Allen by the Delaware and Atlantic Telegraph and Telephone Company, and that by its agent, Frank Mauran, it unjustly, illegally and fraudulently compelled the .plaintiff to pay said sum of $278.26 to said company or its attorney; that it be ordered and decreed to repay said sum to said plaintiff or be deducted from the rent when due and payable.
    4. For such other and further orders as justice and equity may require.
    CONCLUSIONS OF LAW.
    The question, therefore, as we stated at the outset, is, — Do the facts averred, and which we have recited at some length, entitle the plaintiff to the relief prayed for?
    That he is not entitled to a decree for discovery, pending demurrer, would seem clear. It is not asked for to assist the plaintiff in a common-law action to which he is a party, and is not demandable in this proceeding until after defendant’s answers are filed, as they might render such a decree unnecessary.
    Nor has this court the power to restrain the defendant company from proceeding to recover possession of the premises, under the landlord and tenant act of December 14, 1863. It is a statutory remedy given landlords to recover possession of their premises, and protects the rights 'of tenants by appeal and certiorari, which, if not ample, cannot be enlarged by the courts, but the legislature only.
    There can be no consolidation of the scire facias sur judgment proceedings, No. 21, August Term, 1906, with this bill, for none exists; they were terminated by payment of the debt, interest and costs, and by making the rule to show cause why the case should not be stricken from the list, absolute.
    Nor can we require the defendant, company to repay to the plaintiff the $278.26, which he paid to the sheriff. It was a voluntary payment, made without duress, and as the plaintiff says, “in order to protect and defend his rights of possession of said real estate.”
    The real estate in question was subject to a lien of a judgment for $250, which antedated both the plaintiff's lease and defendant company’s deed. This judgment was assigned to Frank Mauran, acting as the agent of the defendant company, thus preventing a merger. To secure early possession of the premises and not await the termination of plaintiff’s lease, it has its agent sue out the judgment; when the plaintiff, to defeat its purpose and preserve his possession of the premises, saw fit to voluntarily pay off the same.
    There was nothing illegal in the proceedings, and the plaintiff has no cause to complain, when he was free to, and did select the course that he deemed the best for the protection of his own interests. There was no duress or compulsion exercised by the defendant, compelling him to pursue that, rather than some other course.
    There is nothing whatever to sustain what may be termed the conspiracy clause/ set forth in paragraph eight of the bill.
    The averments therein contained, the plaintiff says, are made on information and belief, but fails to state the source of his information, or what it was. Nor does he name the justice of the peace who, he represents, is so corrupt and unscrupulous as to be “owned and controlled by the said company,” and who, he alleges, will, in violation of his oath of office, give a “fraudulent judgment” in favor of said company.
    These bitter and virulent allegations, wholly unsupported by any statement of facts, are too vague and general to merit consideration.
    For the reasons above set forth, the demurrer must be sustained and the bill dismissed at the costs of plaintiff.

      Error assigned was decree dismissing the bill.

      George B, Johnson, with him Granville L. Rettew and Harris L. Sproat, for appellant. —
    The court cannot take notice of an extraneous fact depriving the bill of its equity, nor can it consider documentary evidence on file in the case: Fitzsimmons v. Lindsay, 205 Pa. 79; Mills v. Larrance, 186 Ill. 635 (58 N. E. Repr. 219).
    The relief prayed for was not against a legal proceeding, but was based upon a fraudulent abuse of legal process in which the defendant company had taken the first step and threatened to accomplish its purpose by force and fraud before a tribunal without jurisdiction: Brown’s App., 66 Pa. 155; Poore v. Price, 5 Leigh. (Va.), 52; Shelton v. Tiffin, 47 U. S. 163.
    If the relief sought by the bill is based on fraud, the bill will not be demurrable unless it shows on its face not only that suit was not brought within the statutory period, but also that the statutory period has elapsed since complainant discovered the fraud: Sheldon v. Keokuk Northern Line Packet Co., 8 Fed. Repr. 769, 777; Jones v. Slauson, 33 Fed. Repr. 632; Johnson v. Powers, 13 Fed; Repr. 315; Venango County v. Penn Bridge Co., 14 Pa. Dist. Rep. 221; Shelton v. Tiffin, 47 U. S. 163.
    July 15, 1908:

      Isabel Darlington, with her Thomas S. Butler and Joseph H. Baldwin, for appellees,
    cited: Brown’s App., 66 Pa. 155; Ditman v. Raule, 134 Pa. 480.
   Opinion by

Rice, P. J.,

This is an appeal from a decree sustaining defendants’ demurrer and dismissing the plaintiff’s bill. The opinion filed by the learned judge below gives a good understanding of the issues raised by the demurrer, and renders unnecessary a detailed restatement by us of the averments of the bill. Appellant’s counsel are technically right in saying that the fact that the court struck the scire facias case from the trial list could not be taken into consideration upon the hearing of the demurrer, because that did not occur until after the demurrer was filed. But so far as the bill is to be regarded as a bill of discovery in aid of that action at law, the fact that it had not been stricken from the trial list at the time the bill was filed, is immaterial. The scire facias was upon a judgment which was a lien upon the land when the plaintiff in the bill acquired his leasehold estate therein. He was brought into the case as terre-tenant, and set up a defense which, if good, was available in that case. If he needed the aid of a bill of discovery in making his defense, then was the time to present it. Instead of doing so, he paid the judgment, debt, interest and costs, and this appears in the bill itself.- It is stated in the brief of argument that he paid under protest, having first demanded an assignment of the judgment, but we find neither of these facts averred in the bill. Having thus terminated the action at law, a bill for discovery only would not lie: Cardale v. Watkins, 5 Madd. Rep. 19; Collom v. Francis, 1 Pars. 527; Story’s Equity PL (10th ed.) sec. 321. For the same reason, if for no other, the plaintiff in the bill was not in position to demand a decree consolidating the bill with the action at law he had terminated.

But it is claimed that the circumstances under which he paid the money were such that he is entitled to relief in equity. The material averments upon that subject are that judgment in the scire facias having been entered by default against the defendant in the judgment, and the other terre-tenant, but not against him, and execution having been issued thereon, upon which they waived condemnation, he was compelled to pay in order to preserve his possession of the premises. But as he had been made a party to the scire facias and had set up a defense, it is not clear how his right could be prejudicially affected by an execution against the other parties to the suit, issued in advance of a hearing upon and an adjudication of his defense. Nor, even if it be conceded that the course of procedure after judgment against the defendants in the original judgment and the other terre-tenant tended to prejudice his interest, is it apparent that he did not have an adequate remedy by application to the court in the very case to which he had been made a party, to restrain or control the execution until his defense could be heard. But, so far as appears, he did not ask the aid of the court in any form. It is also shown by his .original and supplemental affidavits of defense, which were made a part of the bill, that he paid the money with full knowledge of all the facts he now sets up as ground for equitable relief. Having paid the money under such circumstances, he must be deemed to have elected to rely on such remedy as the law affords him to recover it back. We do not intimate that the law affords him a remedy; that question is not before us. It is enough for present purposes to show that his bill does not disclose a payment of money under such circumstances of fraud and duress as entitles him to the aid of a court of equity to recover it back. In arriving at that conclusion we have not overlooked what the learned counsel have said upon the subject of demurring to a bill alleging fraud as a ground of relief. What the purchaser of the land attempted was to prevent a merger of the judgment (which was a lien when Sherman leased) with the fee, by having it assigned to a third party. Whether this could or could not be done effectually, so as to keep the judgment in life, and enforce it notwithstanding Sherman’s tenancy, it was not a fraud upon him for the purchaser of the fee to assert the right and make the attempt to exercise it. The case, as we view it, falls within the general principle of equitable pleading that á general allegation of fraud in a bill is insufficient, even upon demurrer, if the facts and circumstances relied upon to support the allegation do not constitute a fraud.

The second prayer of the bill is that the defendant be enjoined and restrained from proceeding “before any justice of the peace,” or otherwise, to recover possession of the premises until the termination of the lease, so long as the plaintiff promptly pays, when due, the rent secured thereby. The relief here prayed is based on matters independent of the proceedings on the judgment above referred to. The issue that would be presented by a proceeding before a magistrate is whether the landlord, or one standing in his place, can eject a tenant before the expiration of his term, he not being in default in any way. Surely it cannot be said that the question presented would be a complicated one and, therefore, a court of equity would be justified in interfering upon the ground of the inadequacy of the statutory remedy. The decision in Kaufmann v. Liggett, 209 Pa. 87, has no application to such a case. If equity has jurisdiction, it is upon the ground and subject to the limitations thus stated by Chief Justice Mitchell in Denny v. Fronheiser, 207 Pa. 174: “The jurisdiction of equity to restrain actions at law is too well established to require discussion, and there is nothing in the act of 1772, to give proceedings under it any immunity from such restraint in a proper case. But the limitations of interference by equity are as well settled as the jurisdiction itself. The case must fall within some one or more of the recognized categories of fraud, accident or mistake,” etc. But as was said in that case, so it may be said in this case, the allegations of fraud scarcely come up to the required standard. The charges in both cases are somewhat similar. It is charged in the present case: “that.your orator is informed, believes and upon such information avers that the said company, by its officers and agents have threatened and intend by force and fraud to eject him from the possession of said premises on April 1, 1907, in violation of his rights under said lease. That the action threatened as aforesaid is a proceeding to recover possession under the act of December 14, 1863, before a justice of the peace owned and controlled by said company, from and against whose fraudulent judgment which said company threatened to obtain, an appeal will not be a supersedeas to the warrant of possession to be issued thereon, by which fraudulent means said company threatens to and expects to dispossess your orator.” This is a most extraordinary charge to bring, and ought to be as clear and specific as it is within the power of the plaintiff in a bill to make it, in order to justify a court of equity in interfering in advance of any proceeding being brought. But, it will be observed, the bill fails to state the source of the plaintiff’s information as to the threats alleged to have been made by the defendant, or the name of the corrupt magistrate who is “owned and controlled” by the defendant, or that he is unable to give his pame. The charge furnishes no ground for an injunction to restrain the defendant from proceeding before any magistrate whomsoever, as the bill prays. When such proceeding is instituted, it will be time enough to call upon a court of equity to interfere with the course of law upon the ground that the magistrate before whom the proceeding is instituted is “owned and controlled” by the plaintiff therein.

The decree is affirmed at the appellant’s costs.


text:
    Winters, Appellant, v. Schmitz.

      Contract — Written and farol contract — Evidence—Question for fury— Fraud.

    When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of written evidence, the court is not bound to consider and give effect to the latter as though it stood alone; an admixture of oral and written evidence draws the whole to the jury.
    When an instrument has been obtained for one purpose and an attempt is made to use it for a different and unfair purpose, parol evidence is admissible to establish the contemporaneous agreement as to the purpose for which it was to be used. Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or use it in violation of the accompanying agreement.

      Contract — Building contract — Price—Evidence—Expert testimony.

    In an action to recover on a building contract where the plaintiff claims twice the amount which the defendant alleged was the contract price, the defendant may prove by competent experts that the amount claimed by the plaintiff was more than twice what would be a fair and liberal price for the work; but the jury may use this testimony only as corroboration of the defendant’s testimony as to the price agreed upon, and for no other purpose.
    Argued Nov. 14, 1907.
    Appeal, No. 76, Oct. T., 1907, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1905, No. 48, on verdict for plaintiff in case of Aldus J. Winters v. Joseph Schmitz.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a building contract. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Now, which of these parties is correct as to the demands thus made before you? That is a question of fact, which this jury must determine. You have heard what the plaintiff has testified to, in regard to the making of the contracts, and also what was done when the contract and agreement as to the release of the mechanics’ liens was signed. If, from this and all the other evidence, you conclude that Winters’s contracts were for $1,625 and $2,900 respectively, making a total of $4,525, and not for only $2,900, in the whole, and you also conclude that the prices claimed for the extra work are correct, then your verdict should be in his favor for the amount which he here claims. If you conclude that the extras are not worth what he says they are, then you will deduct such amount as you think fit on that account. If, on the other hand, you believe what Schmitz has told you, that the contracts in the' aggregate were to be $2,900, and not $1,625 for the first contract and $2,900 additional for the second contract, then your verdict should be in favor of the plaintiff for $872.38, unless you believe that the allowances which Schmitz has made for extra work are insufficient, and, in that event, you will add to that amount such sum as you think is proper to compensate Winters for the extra work which he has done in and about the defendant’s building.] [1]
    [In this connection, you will remember what Schmitz testifies as to what occurred when he signed the agreement to release the liens, and also the testimony of those who saw it signed, as well as that of Winters and Rothenberger, both admittedly present when the agreement was ordered and who have testified before you as to what transpired at that time. In fact, you will take into account not only this testimony, but also all the testimony which has been produced upon the witness stand concerning not only this agreement, but also concerning the reasonable and proper price for which this work ought to have been done. This testimony, however, — I mean, as to the proper and reasonable price for the work, as presented by the defendant, — is only to be considered by you upon the point as to whether or not it was likely that Schmitz made the second contract as a separate contract for $2,900, and for no other purpose. If he did make the second contract for $2,900, he must pay that amount, in addition to the $1,625, which it is admitted was his first contract, and this, under those circumstances, he must do, whether that contract was a reasonable or unreasonable contract, because, if he made it, it makes no difference, and he is in any event, then, bound upon his contract. You will consider, of course, all the evidence that has been produced before you, and from it, make up what you think is a proper and just verdict.] [2]
    Plaintiff presented these points:
    2. Under the evidence submitted in this case, the agreement is binding upon the defendant, and under its terms, the defendant agreed to pay the plaintiff $4,525 for the alterations of this building according to plans, etc. Answer: Refused, as the agreement is only evidence as to what the agreement was, and not conclusive upon the parties. [3]
    3. The verdict of the jury should be in favor of the plaintiff, and the contract of July 12, 1905, should be sustained. Answer: Refused. [4]
    4. The plaintiff is entitled to recover the full amount on his contract, less deductions for sums paid him, and in addition thereto, is entitled to recover for his extra work what the jury may deem proper compensation for the same. Answer: That point is affirmed; but what is the full amount of his contract, whether it is $2,900 or $4,525, is for the jury to determine. [5]
    5. The contract in writing of July 12, 1905, being in writing and signed by the parties, where there is a dispute as here, cannot be changed, varied or set aside by the defendant, unless by two witnesses, or one witness and corroborating circumstances equivalent to the testimony, in addition to the testimony of one witness, at the time it is signed, which was not done in this suit, and therefore such written contract must stand as the agreement of the parties. Answer: Refused. [6]
    Defendant presented these points:
    1. If a change in the agreement stipulating against mechanics’ liens was made by striking out the words “a certain sum of money stipulated in a separate contract” and inserting therein in place thereof, “the sum of $4,525” and the'defendant, Joseph Schmitz, was deceived thereby, so that he did not know that the sum of $4,525 was named in the agreement, and he signed the agreement without his' attention being called to it, and he did not see it as part of the agreement, then it is not part of the agreement, and he is not bound by it. Answer: We say, in answer to this point, that, if the jury believe the facts as herein stated, then Schmitz is not concluded by this part of the stipulation or release. Especially is this so, if the jury believe that the paper was prepared merely for the purpose of stipulating against mechanics’ liens, according to the testimony of the parties, and that it was not entered into as an agreement of the parties, fixing the contract price of the work. [7]
    2. If at or prior to the signing of the agreement stipulating against mechanics’ liens, nothing was said to the defendant, Joseph Schmitz, about the change made in said agreement and the interlineation in said agreement of the sum of $4,525 and he signed the agreement without knowing it, then he is not. bound by it. Answer: That point is affirmed; although, in addition, we say, everyone is, of course, presumed to know what he signs, and that presumption arises against Schmitz in this case. Of course, the jury may find that presumption to have been rebutted by the proof; but that is a matter which is submitted for them to pass upon, under all the evidence. [8]
    Verdict and judgment for plaintiff for $978.11. Plaintiff appealed.

      Errors assigned among others were (1-8) above instructions, quoting them; (9, 10) admission of testimony of experts as to the value of the work.

      B. F. Davis, for appellant. —
    It is not enough that there are parol stipulations contradictory of a written agreement in order to change its legal effect. There must be fraud, accident or mistake, and the evidence of either must be clear, precise and indubitable: Hill v. Gaw, 4 Pa. 493; Anspach v. Bast, 52 Pa. 356; Phillips v. Meily, 106 Pa. 536.
    If part of the contract could be altered by parol, then it all becomes parol and both the written agreement and record thereof are set aside: Vicary v. Moore, 2 Watts, 451.

      John E. Snyder, for appellee. —
    It is as much a fraud to obtain a paper for one purpose and use it for a different and unfair purpose, as to obtain it by fraudulent statements: Phillips Gas and Oil Co. v. Pittsburg Plate Glass Co., 213 Pa. 183; White v. Black, 14 Pa. Superior Ct. 459; Dutton v. Tilden, 13 Pa. 46; Batdorf v. Albert, 59 Pa. 59; Kramer v. Dinsmore, 152 Pa. 264; Renshaw v. Gans, 7 Pa. 117.

      July 15, 1908:
   Opinion by

Rice, P. J.,

In June, 1905, the plaintiff entered into a contract with the defendant to make certain alterations and repairs to the defendant’s buildings for $1,625. Later in the month, after this work was under way, a second contract was entered into by them for additional alterations, and for a change in the alterations contemplated in the first contract. There is no dispute as to the making of these two contracts, or as to the plaintiff’s performance, or as to the price to be paid under the first, or as to the fact that the additional sum to be paid under the second contract was agreed upon, but there is a dispute as to what the agreed sum was. The plaintiff alleged in his statement of claim and gave evidence that it was $2,900, thus making his entire claim, apart from extras which are not in dispute, $4,525. The defendant testified that the agreed price was $1,275, or, to be more exact, that the second contract was that all of the alterations were to be made for $2,900. It is enough to say, without obscuring the statement by unnecessary recital of dates and amounts, that the verdict of the jury implies a finding that the plaintiff agreed to make the alterations contemplated by the two contracts for $2,900. What occurred after these contracts were made and were partly performed is to be considered in the light of this established fact.

This being the contract between the parties, and the greater part of the alterations having been made, the defendant on July 11, requested the plaintiff to give an agreement to be filed in the prothonotary’s office that would protect his property against mechanics’ liens. This in substance is the plaintiff’s testimony adduced by his own counsel, in the presentation of his case in chief, and in his direct examination. The defendant’s version is that he told the plaintiff he had .been negotiating for a loan and the parties had inquired of him whether he had a “release of liens,” and that thereupon the plaintiff said: “That is all right; we can easily fix that up; we will go to Mr. Rothenberger.” Thereupon they went to Mr. Rothenberger, the architect, and requested him to prepare a contract against mechanics’ liens. He was given no instructions as to the terms or the price, and nothing was said upon this subject by either of the parties. Rothenberger, who was called as a witness by the plaintiff, testified upon cross-examination that he was asked to prepare a contract against mechanics’ liens, and was not asked to prepare anything else. This testimony was not contradicted. Without going further into detail as to the preparation of the paper, we are warranted in saying that the testimony furnishes no ground for inference that the parties intended to make a new agreement as to price or as to the alterations of the building in the place of the existing one, but that all of the evidence leads to the conclusion that their intention and their instructions to Rothenberger were to prepare a paper for their execution, which would protect the defendant’s property against mechanics’ liens, and that this was the sole purpose they intended the paper to accomplish. Mr. Rothenberger could not attend to the matter immediately, but later prepared a typewritten paper, dated July 12, purporting to be an agreement for making the alterations in the defendant’s buildings, and containing a formal stipulation against liens. In the clause relating to the amount to be paid for the alterations appeared the words “a sum of money stipulated in a separate contract,” and in the clause relating to the time of completion appeared the words, "time stipulated in a separate contract.” On July 12 the plaintiff called for the paper, and by his direction, the defendant not being present and not having been consulted, Rothenberger drew a line through the above-quoted words, and in the first of these clauses interlined with a pen the words and figures "the sum of four thousand five hundred and twenty-five ($4,525.00) dollars” and in the second clause substituted in the same manner the words and figures “ 15th day of September, 1905.” The plaintiff then took the paper to the defendant, and after it was executed took it to the court house for filing. The testimony as to what occurred at the time of execution is not in conflict except as to one particular. The defendant testified that he did not read the paper, while the testimony of the pláintiff and his witnesses tends to show that he, at least, "leafed it over,” and had an opportunity to read it. But the plaintiff admits that he did not call'the defendant’s attention to the alterations in the paper, and there is no testimony that anything was said as to the price or as to any other matter, which, apart from the paper itself, would tend to show that the parties intended to substitute it for the contracts under which the work was being done. On the contrary, the defendant’s testimony is that when the plaintiff produced the paper for his execution he said: “Here is the release of liens I got; sign it.” This testimony is not contradicted. Taking the plaintiff at his word, there was.no change of intention on his part as to the purpose for which the paper was to be used, and it is evident that there was none on the defendant’s part.

It is to be observed that the plaintiff in his statement of claim sets up the two parol contracts of June as entering into his cause of action, and says that “after the greater part of said work had been completed and most of said materials furnished for the alterations of said buildings .... a written article of agreement was entered into,” reciting the terms and attaching a copy of the paper of July 12. There is no averment that this was intended to abrogate or to be a substitute for the contracts under, which the work had been entered upon and carried so far toward completion. It is further to be noticed that the subjects investigated upon the trial, namely, the making and the terms of the two June contracts, the purpose for which the paper of July 12 was prepared, the instructions to the scrivener, the interlineations in the paper and its execution, were thrown open to the defendant’s parol testimony relating thereto, by the parol testimony of the plaintiff and his witnesses, given upon the same subjects, in the presentation of his case in chief. Notwithstanding this manner of presenting his case in his pleadings and evidence, the plaintiff contends that the paper of July 12 is conclusive upon the question of consideration. We cannot concur in that conclusion. That paper, on its face, does not purport to be an agreement as to past transactions. In order to connect it' with them parol evidence, was necessary. The plaintiff appreciated this, and,presented his case accordingly; but as so presented the principle was applicable that when matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of written evidence, the court is not bound to consider and give effect to the latter as though it stood alone; an admixture of oral and written evidence draws the whole to the jury: Home Building and Loan Association v. Kilpatrick, 140 Pa. 405; Chicago Cottage Organ Co. v. McManigal, 8 Pa. Superior Ct. 632; Wetherill Bros. v. Erwin & Wagener Co., 12 Pa. Superior Ct. 259. This is so, not only because of the manner in which the plaintiff presented his case, but also because the case is within the well-recognized exception to the general rule against permitting written instruments to be affected by parol testimony, that when an instrument has been obtained for one purpose and an attempt is made to use it for a different and unfair purpose parol evidence is admissible to establish the contemporaneous agreement as to the purpose for which it was to be used. “Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or use it in violation of the accompanying agreement:” Rearich v. Swinehart, 11 Pa. 233. This exception to the general rule has been recognized in many subsequent cases, and as late as the case of Phillips Gas & Oil Co. v. Pittsburg Plate Glass Co., 213 Pa. 183. White v. Black, 14 Pa. Superior Ct. 459, is a very similar case to the present as appears by the second paragraph of the syllabus, which we quote: “In an action for rent due under an alleged parol lease where the defendant introduced as part of his defense a subsequent written lease, it was competent for the plaintiff in rebuttal to introduce evidence tending to show that the defendant did not go into possession under the lease last referred to; that it was not executed until after the term had well progressed; and that it was then signed and given to the defendant, at his request for the specific purpose, and for that purpose only, of being used by him to show in litigation then pending in court between him and a third person, that the plaintiff had admitted him in his own right as tenant of the premises.” If there ever can be a case where the effect of a written instrument can be controlled by clear, convincing and indisputable parol testimony of the sole effect and purpose the parties, at the time they executed it, intended it to have and accomplish, this is such a case. The learned trial judge submitted the question of consideration to the jury, and also submitted the paper of July 12, to them as evidence upon that question, but held that it was not conclusive. There was no error in the submission or in the manner of the submission of this question.

The fact in dispute was the contract price for the work done under the second contract. Was it $2,900 as testified by the plaintiff, or $1,275 as testified by the defendant? In corroboration of his testimony, and for that purpose only, he was permitted to prove by competent experts that $2,900 was more than twice what would be a fair and liberal price for the work. It must be conceded that such testimony ought to be admitted with great caution because it raises a collateral issue which may unduly prolong the trial, and may divert the attention of the jury from the real issue. But if the defendant could prove to the satisfaction of the jury that there was so great a discrepancy between the price claimed and the price for which the work could have been done, we cannot say that this fact might not be taken into consideration by the jury in corroboration of his testimony as to the price agreed upon. Hamilton v. Hastings, 172 Pa. 308, recognizes a principle under which, in the special circumstances, the testimony could be admitted. The learned trial judge was careful to say when he admitted the testimony that it could only be considered for the purpose above stated, and in his charge to the jury he controlled its effect by the following instructions which the jury could not have misunderstood. He said: “This testimony, however, — I mean, as to the proper and reasonable price for the work, as presented by the defendant, — is only to be considered by you upon the point as to whether or not it was likely that Schmitz made the second contract as a separate contract for $2,900, and for no other purpose. If he did make the second contract for $2,900, he must pay that amount, in addition to the $1,625, which it is admitted was his first contract, and this, under those circumstances, he must do, whether that contract was a reasonable or unreasonable contract, because, if he made it, it makes no difference, and he is in any event, then, bound upon his contract.”

All the assignments, of error are overruled and the judgment is affirmed.