text:
    Commonwealth v. Pilnik, Appellant
    (No. 1).

      Appeals — Criminal law — Separate judgments.

    If one appeal is taken from two judgments of conviction on two indictments charging separate and distinct offenses, and no election is made to have the appeal confined to one of the cases, the appeal will be quashed.

      Appeals — Paper-books—Omission of docket entries.

    Omission to print docket entries in the paper-book of the appellant, is a serious disregard of the rule of court.
    Argued Oct. 3, 1905.
    Appeal, No. 159, Oct. T., 1905, by Barnet Pilnik, from judgment of Q. S. Phila. Co., Dec. T., 1902, No. 162 and Jan. T., 1905, No. 532, on plea of guilty in case of Commonwealth v. Barnet Pilnik.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Appeal quashed.
    Indictment for keeping a disorderly house.

      Error assigned was in sentencing the defendant to the penitentiary.

      Wm. E. Berhowitz, with him Ellis 8. Abrams, for appellants.

      Joseph H. Taulane, assistant' district attorney, with him John O. Bell, district attorney, for appellee.
    October 23, 1905:
   Per Curiam,

On February 9, 1905, the defendant withdrew his pleas of not guilty to two indictments, one found at December Term, 1902, No. 162, and the other found at February Term 1905, No. 134, and pleaded guilty. On the following day the court sentenced the defendant upon both indictments to terms of imprisonment in the eastern penitentiary, the term of imprisonment in the second case to begin after the expiration of the term of the sentence in the first case. The indictments charged-separate and distinct offenses, and the judgments, although rendered at the same time, are likewise separate and distinct. The commonwealth’s counsel contend that for this reason, as well as for the reason that copies of the docket entries are not printed in the appellant’s paper-book, the appeal should be quashed. The second objection is meritorious, and we are not to be understood as holding that the rule with regard to printing the docket entries can be safely disregarded. It was especially important in this case that they should be set forth. However, the commonwealth’s counsel have to some extent supplied the omission in their paper-book, and therefore we shall consider only the first reason assigned for quashing the appeal, viz.: that it is an attempt to bring up for review by one appeal, two separate and distinct judgments.

It is well settled by the decisions of the Supreme Court, as well as of our own court, that the motion to quash for this reason must prevail, in the absence of an election to have the appeal confined to one of the cases, and dismissed as to the other : Hollohan v. McLean, 1 W. N. C. 262 ; Cauley v. Pittsburg, Cincinnati & St. Louis Ry. Co., 95 Pa. 398; McCosh v. Myers, 25 Pa. Superior Ct. 61.

The appeal is quashed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Pilnik, Appellant
    (No. 2).
    Argued Oct. 3, 1905.
    Appeal, No. 160, by Rosie Pilnik, alias Brown, from judgment of Q. S. Phila. Co., Dec. T., 1902, No. 134, on plea of guilty in case of Commonwealth v. Rosie Pilnik, alias Brown.
    Before Rice, P. J., Ort.adv, Smith, Porter, Morrison and Henderson, JJ.
    .Appeal quashed.
    October 23, 1905 :
   Per Curiam,

This case in its essential features is precisely the same as the case of Commonwealth v. Barnett Pilnik, ante p. 285, in which we herewith file an opinion. For the reasons there given, the appeal is quashed,


text:
    Currey, Appellant, v. McCurdy.

      Equity — Landlord and tenant — Wrongful distress — ■Replevin—Remedy at law — Discovery.
    The appellate court will sustain a decree refusing an injunction before an answer filed, on a bill in equity by a tenant to restrain the execution of a landlord’s warrant in the hands of a constable. The fact that the bill contained a prayer for discovery is immaterial.
    Argued Oct. 4, 1905.
    Appeal, No. 48, Oct. T., 1905, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3723, refusing injunction in case of Joseph Wheeler Currey v. E. Y. McCurdy.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed;
    Bill in equity for discovery and an injunction.
    Beitler, J., filed the following opinion:
    Injunction refused. It is true that the bill seeks discovery as to the terms of the lease and the ownership of the premises. The latter the records would have given the plaintiff; the former he might have secured by application to the lessor, or at least there is no allegation that he was refused the information. The mere fact that he makes discovery one of the prayers of this bill gives this court of equity no right to interfere with the levy for the rent. In that case, the tenant’s rights can all be protected by a replevin. If there is no rent due, that will be the issue in replevin. Unless there is no rent due, this court has no right to grant the injunction prayed for.

      Error assigned was the decree of the court.

      Edward F. Hoffman, for appellant.

      Isaac 1). Yocum, for appellee.
    October 23, 1905:
   Per Curiam,

The statement of the questions involved in the appellant’s paper-book and some of the assignments of error, assume that this is an appeal from a final decree dismissing the plaintiff’s bill. This view of the record and decree is erroneous. The record shows that the bill was filed on February 8, 1905, and that on February 14, 1905, before answer filed, the injunction was refused. This cannot be considered otherwise than as an interlocutory decree refusing a preliminary injunction, and whilst the statute gives a right of appeal from such decree, we are all of opinion that upon the state of the record and proofs at the time the decree was made, the learned judge below was right'in holding that the case was not one requiring or justifying the interference of a court of equity with the execution of the landlord’s warrant then in the hands of the constable. This is the only question properly before us. Whether the plaintiff is entitled to maintain the bill in order to obtain discovery of the names of the owners, so that he may bring proceedings at law to recover damages for past injuries, is a question which does not arise and need not be discussed upon this appeal.

Decree affirmed and appeal dismissed at the appellant’s cost.


text:
    Battersby, Appellant, v. Schuylkill Tribe No. 202, Improved Order of Redmen.

      Beneficial association — Funeral benefits — Widow—Volunteer.
    Where the by-laws of a beneficial association provide that funeral benefits shall be paid to the widow, unless the officers are satisfied that such benefits would be diverted from their legitimate purpose, in which case they may see to their payment, an undertaker who is a mere volunteer without contract with the association cannot recover from the latter the expenses of the funeral of a member merely because he notified the association that the widow intended to divert the fund, and the widow in fact did divert the fund when it was paid to her.
    Argued Oct. 10, 1905.
    Appeal, No. 91, Oct. T.,- 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 2283, discharging rule for judgment in case of William II. Battersby v. Schuylkill Tribe No. 202, Improved Order of Red Men, Abraham D. Kohler, Chief of Records.
    Before Rice, P. J., Beaver, Orlaey, Porter, Morrison and Henderson, JJ..
    Affirmed.

      Assumpsit for funeral expenses.
    Plaintiff’s statement of claim was as follows:
    The plaintiff is engaged in the county of Philadelphia as an undertaker and as such buried one George Young who at the time of his death was a member in good standing in the defendant association, the said Schuylkill Tribe No. 202, Improved Order of Red Men of Pennsylvania, and as such, in accordance with the provision of article XIII, sec. 1, of the by-laws of said defendant association, which reads as follows: “ In the event of the great spirit calling from these hunting grounds to those of the hereafter, a member of this tribe who has been a member one great sun, and at the time of his death entitled to seven suns benefits, there shall be appropriated the sum of seventy-five fathoms ($75) to assist in defraying the funeral expenses, which said sum shall be paid by the Sachem to the wife or nearest relative, provided the brother has not designated some other person to receive it.” Seventy-five dollars was appropriated by the said defendant association to assist in defraying the funeral expenses of the said George Young, deceased.
    In order, however, to assure the use of the said money for such funeral expenses, the said association, defendant, provides as follows in section 6 of said by-laws, to wit: “ Funeral benefits shall only be appropriated for the purpose of defraying the expense of burial and if the elective Chiefs of the Tribe are satisfied that the wampum would be diverted from its legitimate purposes then they shall have full power to see that the expenses are paid, provided that the same does not exceed the sum allowed under the law, and if there should be a sum left, after the expenses are paid, then the balance shall be returned to the belt.”
    The plaintiff avers that he caused to be served a notice on the said defendant association not to pay the said $75.00 to the widow of the said decedent, she having declared that she would not use the same or any part thereof to defray the said funeral expenses. Nevertheless the said defendant did pay the said $75.00 to the said widow, and the said widow has refused, and does refuse, to devote the same or any part thereof towards defraying the said funeral expenses.
    The plaintiff therefore claims that the defendant association having disregarded its own rules and regulations, and in defiance of the said notice of the plaintiff, having refused to pay the money to the plaintiff, the said defendant is liable to pay the sum of $75.00 to the plaintiff, being the full amount of plaintiff’s bill, and therefore brings this suit to recover the sum of 175.00 with interest.
    Defendant filed an affidavit of defense averring that the plaintiff was a mere volunteer. The court discharged the rule for judgment.

      jError assigned was the order of the court.

      William, C. Gross, with him Marry I. Hiestand, for appellant,
    cited: Haas’ Estate, 18 Phila. 185; Berlin Beneficial Society v. March, 82 Pa. 166; Zell’s App., 111 Pa. 532; Torrens v. Campbell, 74 Pa. 470; Kountz v. Holthouse, 85 Pa. 235; Wynn v. Wood, 97 Pa. 216.

      William T. Connor, with him John It. K. Scott, for appellee,
    cited: Ins. Co. v. Boggs, 172 Pa. 91; Keener’s Quasi Contracts, 341: Webb v. School, 3 Phila. 125; Jones v. Woods, 76 Pa. 408.
    October 23,1905:
   Per Curiam,

The court might well have refused to enter judgment for the plaintiff for want of a sufficient affidavit of defense, upon the ground that it is not distinctly alleged in the statement of claim that the goods furnished and the services rendered by plaintiff, in and about the burial of George Young, were worth the sum claimed. But, apart from this defect in the statement, the plaintiff was not entitled to summary judgment. So far as the statement shows, he was a mere volunteer. There was no express contract between him and the defendant association, and no facts are alleged from which a contract on the part of the association to compensate him for the services and reimburse him for the expenditures rendered and laid out by him can be implied.

The doctrine of those cases which hold that one for whose particular benefit a contract is made may maintain an action to enforce it, does not control the case as it is now presented. As the decedent had not designated any person to receive the funeral benefit, it became the duty of the association, under the by-laws, to pay it to his widow, unless the chiefs of the tribe were satisfied that it would be diverted from its legitimate purpose, in which latter case they had full power to see that the funeral expenses were paid.

Assuming that the by-laws give them discretionary power to withhold payment of the stipulated sum to the widow or nearest relative, it does not necessarily follow that they are guilty of an abuse of discretion in not doing so simply because a third party — in this case the undertaker — notifies them that she had declared that she would not use the money for the purpose for which it was intended. In other words, they are not bound to take such a statement to them as absolute verity and to act accordingly. The fact that such notice was given may be relevant because it puts them upon inquiry, but it does not of itself conclusively, establish a legal or equitable obligation on the part of the association to pay the fund to the undertaker who, as a mere volunteer, has conducted the burial.

Appealylismissed without prejudice, etc.


text:
    Shepherd, Appellant, v. Pennsylvania Railroad Company.

      Assignment — Notice—Death of assignee — Insolvency.
    The fact that an assignee of a chose in action does not give notice of the assignment to the debtor until after the assignor dies insolvent, does not defeat the rights of the assignee to the fund as against the administrator of the assignor.
    Argued Oct. 11, 1905.
    Appeal, No. 148, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1905, No. 4190, for E. & H. Levy on case stated in suit of Ellen Shepherd, Administratrix of John Shepherd, deceased, v. Pennsylvania Railroad Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Case stated to determine the ownership of a fund.
    Yon Moschzisker, J., filed the following opinion:
    On November 2,1903, Shepherd being undebted to E. and H. Levy assigned to them as collateral security all accounts due or to become due to him by the Pennsylvania Railroad Company. February 28, 1905, Shepherd died, insolvent. At the time of his death the railroad company owed him $375.68, which is claimed by his administratrix, and also by E. and H. Levy. The fund has been paid into court and the claimants have been permitted to interplead.
    On behalf of the plaintiff — Shepherd’s administratrix — it is contended that, because of the failure of Levy to give notice, to the railroad company of the assignment prior to the death of the assignor, they lost their preference under it, and that the administratrix is entitled to the balance due by the railroad company at the time of Shepherd’s death. On the other hand, E. and H. Levy claim the said balance by virtue of their assignment.
    The assignment was made by John Shepherd to E. and H. Levy during the lifetime of the said Shepherd, and was reduced to writing, executed and duly delivered; further, it was acted upon and treated as alive between the parties thereto. Had notice been given by the assignee to the railroad company, then there would not have been any question concerning the rights of the assignee in the premises, but as notice was not given until after the death of the assignor, it is argued that possession was not taken, and therefore that the fund in question formed part of the estate of John Shepherd when he died and now should go to his personal representative and not-to the assignee thereof. Phillip’s Estate No. 3, 205 Pa. 515, is cited to sustain this contention, but that case simply decides that “ If an assignee of a chose in action fails to give notice to the person holding the fund assigned to him, a subsequent assignee without notice of the former assignment will upon giving notice of his assignment acquire priority. By such notice the legal holders are converted into trustees for the new assignee, and are charged with the responsibility towards him and the assignor is deprived of the power of carrying the-same security repeatedly into the market, and of inducing third persons to advance money upon it under the erroneous belief that it continues to belong to him absolutely, and that the trustees are still trustees for him, and no one else.” The rule there laid down is not for the benefit of creditors generally, or especially for the benefit of the person holding the fund, but rather to prevent the possibility of an owner of a chose in action committing fraud by assigning it repeatedly, and the theory on which the rule is worked out is that if the first assignee fails to give notice, he leaves it within the power of the assignor to deceive and defraud a subsequent assignee for value, and that any one who leaves such a power in the hands of another can be said to collude with him beforehand if the power is subsequently taken advantage of. However, Phillip’s Estate No. 4, 205 Pa. 525, decides, on the other hand, that a general creditor who becomes an attaching creditor stands in the position of the assignor with only such rights as the assignor had against the assignee ; that he is not in a position of a subsequent purchaser for value, an'd would have no right of preference over a prior assignee who had failed to give notice ; in other words, that the lien acquired by an attaching creditor would be subject to prior assignments of the fund attached even though no notice had been given by the assignee to the holder of the fund. To our mind this last case shows that the rule laid down in Phillip’s Estate No. 3 was not for the benefit of creditors generally, and, therefore, upon .the death of the assignors in the case at bar, the only thing that his general creditors could take, either directly or claiming through the personal representative of the deceased assignor, would be such estate as the assignor could have claimed himself in the particular fund immediately prior to his death.
    In the case at bar, although the assignment is made as collateral, still the debt due to the assignee at the time of the assignment and also at the time of the death of the assignor was very much larger than the amount of the fund covered by such assignment, and, therefore, the assignment passed all the interest the assignor had therein.
    We are of opinion that E. and H. Levy are entitled to the whole of the fund which has been paid into court. Judgment is accordingly entered for the said E. and H. Levy, that they shall have leave to take the said money out of court, and that the costs shall be paid by Ellen Shepherd, administratrix of John Shepherd, deceased.

      Error assigned was the judgment of the court.

      H. Haverstick, for appellant.
    The death of the "assignor before notice awarded the preference: Phillips’ Estate, 205 Pa. 515 ; McClintock’s App., 29 Pa. 360; Adams’s App., 1 P. & W. 447 ; Nice’s App., 54 Pa. 200 ; Bosler v. Exchange Bank, 4 Pa. 32; Patterson’s App., 96 Pa. 93 ; Leiper v. Levis, 15 S. & R. 108 ; Kater v. Steinruck’s Adm., 40 Pa. 501.

      George P. Rich, for appellees.
    At the time of John Shepherd’s death the assignment to E. and H. Levy bound him, although no notice had been given by them to the railroad company. He had parted with his entire right to this fund to them. He had no interest in it, except to such surplus as might remain, if any, after his debt was paid. His right to this surplus was all that could be attached by creditors. And as it was all that he possessed it was all that could pass to his administratrix: Noble v. Thompson Oil Co., 79 Pa. 354; Hemphill v. Yerkes, 132 Pa. 545; Jamison’s Est., 163 Pa. 143; Tryon v. Munson, 77 Pa. 262; Phoenix Iron Co. v. Philadelphia, 2 W. N. C. 596.
    October 23,1905 :
   Per Curiam,

We are of opinion that this issue was correctly decided by the court below. For the reasons given in the opinion filed by the learned judge thereof the judgment is affirmed.


author: Rige, P. J.,

text:
    Commonwealth, Appellant, v. Vetterlein.

      Taxation — Mercantile taxes — Manufacturers—Stores and warehouses — Acts of April 22, 1846, P. L: 486, February 27,1868, P. L. 43 and May 2, 1899, P. L. 184.
    In a suit against a manufacturer of cigars and smoking tobacco it appeared that the defendant had a six-story building in Philadelphia, the cellar of which was used for preparing tobacco, the front of the first floor for the office, and the rear for stamping, shipping, and the second story for stock. The third and fourth were used by the cigar makers, the fifth by the strippers, and the sixth by the packers. He had no counters or show cases for the display of goods. The sales made directly to customers who came to the factory were comparatively few. The rest were made upon orders mailed to the Philadelphia office by his customers, or by his traveling salesmen. He also had a cigar factory at Souderton, Montgomery county, to which, he sent from his Philadelphia factory all the leaf tobacco that it used. He made no sales there except occasionally a box of cigars to a neighbor. The books of the entire business were kept at the Philadelphia factory, and all mail orders were received and the filling of them was directed from there. Some of the cigars manufactured at Souderton were sent from there direct to his customers upon the orders received by him at the Philadelphia place of business. The rest were brought to the Philadelphia factory, and were mingled and sold with the cigars made at that factory. The defendants sold no cigars or smoking tobacco, and carried on no business at either of these places, except as stated. Held, that the maintenance of a place in the Philadelphia factory for the purpose of selling the goods manufactured there as well as those of the same kind manufactured at the Souderton factory exclusively, and carrying on the business in the manner described, were such compliance with the provisions of the act of 1846 as exempted the defendant from liability under that act to a mercantile license tax upon the sales made at that place.
    Argued Dec. 9, 1904.
    Appeal, No. 147, Oct. T., 1904, by plaintiff, from judgment of C. P., No. 4, Phila. Co., March T., 1908, No. 4542, for defendant non obstante veredicto in case of Commonwealth v. Joseph S. Yetterlein, trading as Vetterlein Brothers.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from Board of Mercantile Appraisers. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Ira Jewell Williams, with him Eranlclin L. Lyle and Hampton L. Carson, attorney general, for appellant.
    The defendant has a place of business apart from the factory at which the goods are manufactured, and that he is concerned and interested in the manufacture of goods which are sold at a place other than the place of manufacture. The Philadelphia factory, so called, is used for the purpose of storing and selling goods which are not made there. The fact that defendant also manufactures other goods at his Philadelphia place of business is immaterial. Otherwise a person having a store or warehouse apart from his factory could always evade the law by doing a certain amount of manufacturing there. It is submitted that in the law the defendant must be regarded as having a store or warehouse apart from his factory for the purpose of vending goods: Com. v. Campbell, 33 Pa. 380 ; Com. v. Potter Sons & Co., 159 Pa. 583; Com. v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210; Com. v. Teller, 144 Pa. 545; Norris Bros. v. Com., 27 Pa. 494; Berks County v. Bertolet, 13 Pa. 522.

      Rudolph M. SchieTc, for appellee.
    The act of 1846 was not meant to be a departure from this long-established policy, but to prevent persons who were not manufacturers from escaping the tax by a trick: Norris Bros. v. Com., 27 Pa. 494.
    It is held in Boyd v. Hood, 57 Pa. 98, that a tax law cannot be extended by construction to things not named or described as the subject of taxation.
    ■ The appellant also urges that if defendant is not liable to the tax, a person might evade the law by doing a certain amount of manufacturing at his store. The question of an attempt to evade the law may always be submitted to the jury, and if it be found by them that the transaction is of that character, the party will be liable to the tax. But there is no pretense of such an attempt by this defendant. A case could not be presented which is clearer of an attempt to evade the tax.
    Under the act of 1899 manufacturers are not liable to the tax, even though they do have a store apart from their factory for the purpose of vending their own manufactures.
    October 9,1905 :
   Opinion by

Rige, P. J.,

The defendant is a manufacturer of cigars and smoking tobacco, which business he carries on in this way: He has a six-story building in Philadelphia, the cellar of which is used for preparing tobacco, the front of the first floor for the office and the rear for stamping and shipping, and the second floor for stock; the third and fourth are used by the cigar makers, the fifth is used by the strippers, and the sixth by the packers. He has no counters or show cases for the display of goods. The sales made directly to customers who come to the factory are comparatively few. The rest are made upon orders mailed to this Philadelphia office by his customers or by his traveling salesmen. He also has a cigar factory at Souderton, Montgomery county, to which he sends from his Philadelphia factory. all the leaf tobacco that it used. As to the sales made there his undisputed testimony is: “ We do no selling up there. There may be a box of cigars you sell to a neighbor, but they have no books at Souderton at all.” The books of the entire business are kept at the Philadelphia factory and all mail orders are received there and the filling of them is directed from there. Some of the cigars manufactured at Souderton are sent from there direct to his customers upon the orders received by him at the Philadelphia place of business; the rest are brought to the Philadelphia factory and are mingled and sold with the cigars made at that factory. The defendant sells no cigars or smoking tobacco, and carries on no business, at either of these places, except as above stated.

The commonwealth’s counsel base their contention, that the defendant is liable for the mercantile license tax assessed by the board of mercantile appraisers of Philadelphia, upon the proposition that the provisions of the 11th section of the Act of April 22, 1846, P. L. 486, and the Act of February 27, 1868, P. L. 43, are still in force and are to be applied in connection with the provisions of the Act of May 2, 1899, P. L. 184. They do not claim that he is liable, if he belongs to the class of manufacturers described in the proviso of the 11th section of the act of 1846 or in the act of 1868 ; they do claim that he does not belong to that class of manufacturers because he has á store or warehouse apart from his Souderton factory for the sale of the goods manufactured at that factory. The defendant’s counsel contends : first, that his client belongs to the class of manufacturers above referred to; second, that since the passage of the act of 1899 a manufacturer is not liable to the tax, even though he has a store apart from his factory for the purpose of vending his own manufactures.

. Does the defendant belong to the class of manufacturers above referred to ? If that question be answered in the aifirmative the question involved in defendant’s second proposition need not be discussed. The 11th section of the act of 1846 treats of two general classes of persons and declares that they shall be classified in the same manner and required to pay the same annual tax and license fee as was provided and required in relation to dealers in foreign merchandise. These two classes are: (1) “ all dealers in goods, wares, and merchandise, the growth, product and mamifacture of the United States ” ; (2) “ every person who shall keep a store or warehouse for the purpose of vending and disposing of goods, wares and merchandise, where such person is concerned or interested in the manufacture of such goods, wares and merchandise.” “ A dealer,” said Mr. Justice Black, “ in the popular, and therefore in the statutory, sense of the word, is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands intermediately between the producer and the consumer, and depends for his profit, not upon the labour he bestows on his commodities, but upon the skill and foresight with which he watches the markets: ” Norris Brothers v. Commonwealth, 27 Pa. 494. “Dealers are the middlemen between the manufacturer or the producer and the consumer : ” Lowrie, C. J., in Commonwealth v. Campbell, 33 Pa. 380. See also Commonwealth v. Gormly, 173 Pa. 586 ; Commonwealth v. Robb, 14 Pa. Superior Ct. 597. Under all the cases, excepting perhaps Berks County v. Bertolet, 13 Pa. 522, a person doing business in the manner pursued by the defendant in this case is not a “ dealer ” within the meaning of the act of 1846. But if the act had stopped here, there would have been room for argument that the building in which the sales were made was both a manufactory and a store or warehouse, and therefore such person would have been taxable as though he were a dealer. But a manufacturer must sell his wares, and to tax him as though he were a dealer upon all his sales, no matter where made, would have been in effect to subject the business of manufacturing to a mercantile license tax, which would have been contrai’y to the legislative policy relative to manufacturers as exhibited by all the mercantile license acts passed prior to 1846. That the legislature intended to adhere to this policy is shown by the proviso which reads as follows: “ provided, that mechanics who keep a store or warehouse at their own shop or manufactory, for the purpose of vending their own manufactures exclusively, shall not be required to take out any license.” This is precisely what the defendant does, if we assume that the second story and the office of his building are a store or warehouse within the meaning of the act. True this store or warehouse is not kept at the place where all of the cigars are manufactured, but the words of the act do not require that it shall be. It is in his factory, a building used in connection with the Souderton building for the purpose of his manufacturing business, and the articles manufactured in both places are of the same kind. We do not say that the buildings constitute but one factory. That is not the point to which this discussion tends; nor is it the point that must be established in order to sustain the judgment under review. The point is that no absurd result will be reached and that no apparent purpose of the legislature will be defeated, if we give to the words of the statute their ordinary meaning. In order to adopt the construction contended for by the commonwealth’s counsel we must assume that the legislature meant by the words their own manufactures” their goods manufactured at the shop or manufactory where the store or warehouse is kept. But this is not what the legislature said. And having regard to the manifest purpose to permit manufacturers to sell their own manufactures under reasonable restrictions, without being liable to the mercantile license tax, the reasonable and natural supposition is that if they had intended to make the restriction as broad as the commonwealth’s counsel . claim they would have said so in unmistakable terms. It is argued that if the construction contended for is not adopted a person having a store or warehouse apart from his main factory could always evade the tax by doing a certain amount of manufacturing there. This argument from the consequences that might ensue is opposed by an argument of the same nature that inequality would result if a manufacturer carrying on his business as the defendant does would be liable to the tax and one carrying on a business of precisely the same kind and volume, but keeping a store or warehouse at each place for the sale of goods there manufactured, would not be. But we are not prepared to concede that the statute could be so easily evaded in the manner above suggested if the construction contended for is not adopted. We do not decide what the result would be if the manufacturing done at the Philadelphia factory were so small as to justify the conclusion that it is a mere subterfuge; for this is not that kind of a case. When such a case arises it will be proper to consider whether the place at which the goods are sold is in reality a manufactory within the true intent and meaning of the act. Seeing no adequate reason, which may be considered in the •construction of statutes, for departing from the ordinary meaning of the words used by the legislature in this act, we hold that the maintenance of a place in the Philadelphia factory for the purpose of selling the goods manufactured there; as well as those of the same kind manufactured at the Souderton factory, exclusively, and carrying on the business in the manner described at the outset of this opinion, were such compliance with the provisions of the act of 1846 as exempted the defendant from liability, under that act, to a mercantile license tax upon the sales made at that place.

The act of 1868 declared the true intent and meaning of the 11th section of the act of 1846 to be “ that a manufacturer or mechanic, not having a store or warehouse apart from his manufactory or workshop, for the purpose of vending goods, .... shall not be classified or required to pay the annual tax and license as is now required in relation to foreign dealers.” It is quite evident that this act was not intended to be a complete substitute for the 11th section of the act of 1846; nor is it apparent that it was intended as a complete substitute for the proviso. Certainly no such intent is expressed, and it is not necessary to imply it in order to give full effect to the words. They do not expressly impose liability to the tax upon anyone. They relate to exemption from liability, and their requirements would be satisfied by holding that they enlarge the class intended to be covered by the proviso, so as to include a manufacturer, who has no store or warehouse, either apart from or at his manufactory, for the purpose of selling his manufactures, but who sells them elsewhere in the manner described in Berks County v. Bertolet, or some similar manner. Under that decision such manufacturers would not be exempt; and while the decision was criticized in Norris Bros. v. Commonwealth, and was practically overruled in Commonwealth v. Campbell, decided in 1859, yet in view of one or two later common pleas decisions, one as late as 1862, and the language of the proviso, there was occasion for legislation to remove the doubt whether the case of such manufacturer was within the proviso construed according to its true intent and meaning. This, we conceive, was the purpose, at least one of the purposes, which' the legislature had in view; we discover no clear intent to make anyone liable to the tax who would not have been liable if the act had not been passed.

In view of the conclusions we have reached relative to the acts of 1846 and 1868, it will be unnecessary, as already stated, to discuss the question involved in the second proposition of defendant’s counsel. We are not to be understood as conceding the proposition.

Judgment affirmed.

■Beaver, Porter and Morrison, JJ., dissent.


author: Beaveb, J.,

text:
    Baker v. Moore, Appellant.

      Malicious prosecution — Advice of counsel — Charge of court.

    In an action for malicious prosecution where there is evidence that the defendant employed counsel, it is proper for the court to charge that if the defendant consulted counsel in regard to the prosecution, and gave him a full and fair account of the facts in regard to the case, the advice of the attorney is to be considered by the jury in determining the question of probable cause.

      Malicious prosecution — Points—Malice—Probable cause.

    In an action for malicious prosecution where the evidence is such that it is for the jury to determine whether or not there was malice and probable cause, it is error for the court to affirm a point which assumes both malice and probable cause.
    In an action for malicious prosecution where it appears that the defendant actually believed that he saw the plaintiff in his house acting as a burglar, the fact that he persisted in this belief and assisted in the prosecution is not of itself sufficient evidence to warrant a jury in finding that the defendant ’ acted maliciously and without probable cause.
    The real instigator of a malicious prosecution cannot relieve himself from liability by showing that he was not the prosecutor of record.

      Trial — Evidence—Offer—Striking out testimony — Appeals.
    Where no full offer is required as to testimony, and no request is subsequently made to strike out the testimony, the appellate court cannot convict the trial court of error in regard to the admission of the testimony.

      Malicious prosecution — Evidence—Credibility of witness.

    In an action to recover damages for malicious prosecution for burglary, the defendant under objection and exception was asked this question: “Did you tell anybody after, or shortly after this burglary was committed who the burglar was?” and the answer was “I did.” There was evidence that defendant had told others that he did not know who it was. Held, that the question was properly admitted as bearing upon the credibility of the witness.

      Malicious prosecution — Malice—Probable cause — Charge—Points.

      ■ In an action for malicious prosecution plaintiff presented this point: “The jury may infer malice from want of probable cause,” which was answered: “They may do so; whether they should do so or not depends very much on the particular case they are trying. In some cases they would not be warranted in doing so. In others they might be fully warranted in so doing, so you will take into consideration all the evidence and determine whether or not the defendant was acting maliciously in. the prosecution of this case, if so acting.” Held, not to be error.
    Argued May 16, 1905.
    Appeal, No. 151, April T., 1905, by
    defendant, from judgment of C. P. Venango Co., Jan. T., 1902, No. 10, on verdict for plaintiff in case of Harry Baker v. David M. Moore.
    Before - Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages for malicious prosecution. Before Criswell, P. J.
    From the record it appeared that on the night of August 23, 1901, defendant’s house was broken into by a burglar whom the defendant identified as the plaintiff. The plaintiff was arrested on a warrant sworn out by the chief of police on information prepared by the city solicitor of Franklin. The plaintiff was held for court. At the trial defendant testified that Baker was the burglar whom he had seen in his house. Ten or twelve witnesses called by Baker testified that the latter was participating in a coon hunt some twelve or thirteen miles from Franklin during the night when the burglary was committed. Baker was acquitted.
    Other facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned (1-9) are set forth at length in the opinion of the Superior Court.

      J. II. Osmer, with him A. R. Osmer and N. E. Osmer, for appellant.
    It is error to charge in such a manner as to give the jury a wrong impression of a rule or requirement of law, of a standard by which to determine a question, or of a right, duty, or obligation under the law: Lee v. Newell, 107 Pa. 283; Kissinger v. Thompson, 12 S. & R. 44 ; Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. 300.
    A jury ought not to be permitted to infer malice from the mere want of probable cause, when, by other circumstances, it is disproved: Madison v. Pennsylvania Railroad Co., 147 Pa. 509; Emerson v. Cochran, 111 Pa. 619.

      William J. Breene, with him Jas. S. Carmichael and Bdmond C. Breene, for appellee.
    The absence of probable cause being shown, malice will ordinarily be inferred unless there be extenuating circumstances, such as that the prosecutor submitted the facts fully to counsel learned in the law, and acted on his advice: Mahaffey v. Byers, 151 Pa. 92.
    Malice may be inferred from want of probable cause and particularly in this case where the extenuating circumstances alleged by the defendant are overcome by the plaintiff’s evidence : Reed v. Loosemore, 197 Pa. 261.
    October 17,1905:
   Opinion by

Beaveb, J.,

Plaintiff brought his action against the defendant in trespass for malicious prosecution. The case was, in the main, fairly tried. The charge is quite full and, so far as it went, practically correct.

The defendant, who is the appellant, presents several assignments of error which may be best disposed of by considering them seriatim.

1. As to the charge of the court. The part of the charge assigned for error relates to summing up by the court of the facts relating to the plaintiff’s case. It was, in the main, fair, and, taken in connection with what followed as to the defense, was not objectionable, except as to one point. In the part of ■the charge assigned for error the trial judge said : The plaintiff has further shown you that, after having made these statements (that he did not know who the party charged with the burglary in his house was), Mr. Moore appeared before the justice of the peace; was there as a witness and testified; and, if you believe the evidence of Mr. McElheny, told him he had not only put the prosecution onto Mr. Baker, but also told him that he had his counsel there.” This part of the testimony had been objected to upon the trial and the reception of it is assigned for error in the eighth assignment. Defendant denied that Mr. Osmer was his attorney. Whether he was attorney for Mr. Baker or simply attorney for the prosecution, it seems to us 'that the jury should have been told that, if he was attorney for the prosecution, the defendant was bound to observe his directions in the conduct of the hearing and that, if he was his personal attorney and had consulted him in regard to the matter and had given him a full and fair account of the facts in regard to the case, the advice of the attorney was to be considered by them in determining the question of probable cause. The part which the attorney played in the case does not seem to have been considered by the court below, and yet, in either event, whether attorney for the commonwealth or for the prosecutor in the prosecution for burglary against the plaintiff, the advice of the attorney was, if not conclusive, at least important in determining the question of malice: 11 P. & L. Dig. of Dec. 19,415.

2. The second assignment of error relates to the answer of the court to the plaintiff’s seventh point, which was as follows: “ The fact that some other party than Moore made the information against Baker is not controlling. It is sufficient that Moore, acting maliciously and without probable cause, was one of the originators of the prosecution, and, as such, acting voluntarily, accused the plaintiff of the crime charged, consented to and aided in its prosecution,” which was “ affirmed.” This point seems to assume both malice and probable cause on tbe part of the defendant, whereas it should have been left for the jury to find them ; or, if affirmed as presented, it should have been qualified by the court, so as to leave both questions to the jury. If the point had said, “ If the jury believe that Moore acting maliciously and without probable cause,” etc., the point would have been in every way proper, but the statement, “It is sufficient that Moore, acting maliciously and without probable cause,” etc., assumes as existing or as approved all the elements necessary to establish liability of the defendant to respond in damages. This was doubtless not intended, but such is its effect.

3. Nor are we satisfied with the affirmation of the defendant’s sixth point, the answer to which constitutes the third assignment of error. It is stated in the point: If, therefore, the jury find that the defendant, Moore, participated in the prosecution as indicated in the first point hereof, and further, that said Moore was promptly advised of the nature of Baker’s defénse to the charge of burglary and afforded reasonable ground to investigate such defense and refused or failed to do so, and thereafter persisted in accusing Baker of the crime charged, and consenting to and aiding in his prosecution, then 'such facts and circumstances would warrant the jury in finding that Moore acted not only maliciously but without probable' cause.” This was affirmed.

If it is intended to convey in this point the idea that Moore, being present before the justice and the defendant’s counsel, having offered to reveal the defendant’s entire defense, was bound to allow that to be done, or to pursue the subject so as to satisfy himself in regard to the matter, we do not think the point should have been affirmed without qualification. It appears from the testimony upon this subject that the objection to the introduction of the defense of the accused, was made, not by Moóre, but by Mr. Osmer, the attorney, who was present conducting the examination on behalf of the commonwealth. -If he was the commonwealth’s attorney, Moore could not control his conduct of the case. If he was Moore’s attorney, his advice and counsel in the matter were practically sufficient to excuse Moore from doing anything in the premises.

■ But, in addition to this, if Moore actually believed from the evidence of his senses, that the defendant (the plaintiff here) was the person seen by him in his house, he was not bound to accept the statement of any number of witnesses to the contrary, and even if he subsequently persisted in his belief, and assisted in the prosecution; that of itself was not sufficient evidence which “ would warrant the jury in finding that Moore acted not only maliciously but without probable cause.”

4. The fourth, fifth and sixth assignments of error all relate to the qualification attached to the answers of the court in affirming defendant’s second, third and fifth points, all of which were affirmed with the qualification contained in the general charge, “ to the effect that he might be liable, although not the actual prosecutor, if he aided, abetted and assisted in the prosecution.” To these qualifications we see no objection. A person might, for various reasons, put forward a prosecutor in prosecution for a crime and attempt to hide-behind him in case of failure and an attempt to hold him for malicious prosecution, but, if it were shown that he was the real instigator of the prosecution, he would not thereby relieve himself from liability by showing that he was not the prosecutor of record.

5. Nor do we find any error in the answer to the plaintiff’s eighth point: “ The jury may infer malice from want of probable cause,” which was answered: “ They may do so; whether they should do so or not depends very much on the particular case they are trying. In some cases they would not be warranted in doing so. In others they might be fully warranted in so doing, so you will take into consideration all the evidence and determine whether or not the defendant was acting maliciously in the prosecution of this case, if so acting.” 11P. & L. Dig. of Dec. 19,412.

6. - As to the eighth assignment of error, if the defendant had required a full offer and what was subsequently shown had been embraced in the offer, we think it would have been properly ruled out; but, inasmuch as there was no offer and no request, after the evidence was in, to strike it out, we do not think the defendant can avail himself now of what came out in the testimony. As before intimated, it seems that Mr. Osmer was the person who objected to the testimony of the defense being introduced, as was entirely proper, in the preliminary hearing before the justice in the criminal charge. It is true that it is said by the witness that Mr. Osmer and the defendant consulted, but that was evidently in regard to the amount of the bail. Inasmuch, however, as there was no regular offer and no request was subsequently made to strike out the testimony, we cannot convict the court of error in regard to its admission.

7. Nor can we find any error in the ninth assignment of error. The question “ Did you tell anybody after, or shortly after this burglary was committed, who the burglar was ?” and the answer “ I did,” in view of the fact that he had told others that he did not know who it was, would at least be evidence as to the credibility of the witness, if nothing else, and it was, therefore, not improperly admitted.

For the reasons stated, however, regarding the first, second and third assignments of error, we think the case should be retried.

Judgment reversed and a new venire awarded.


author: Pobter, J.,

text:
    Commonwealth v. Pearl, Appellant.

      Criminal law — Fornication and bastardy — Evidence-.
    On the trial of an indictment for fornication and bastardy where the conflict ■ between the testimony of prosecutrix and defendant is irreconcilable, it is reversible error to reject evidence offered by the defendant to show that he was seriously ill at the time of the alleged offense.

      Appeals — Paper-books—Omission of evidence.

    An assignment of error to the rejection of a paper will not be considered, where the appellant has failed to print the paper in his paper-book.

      Trial — Conflict of testimony — Charge—Question for jury.

    A mere conflict in the testimony is not enough to condemn it, provided that out of all of it the facts relied upon emerge with reasonable distinctness and certainty.
    Argued Oct. 2, 1905.
    Appeal, No. 16, Jan. T., 1905, by defendant, from judgment of Q. S. Carbon Co., Oct. T., 1904, No. 33, on verdict for plaintiff in case of Commonwealth v. Louise Pearl.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for fornication and bastardy. Before Heydt, P. J.
    At the trial the following offer was made :
    Dr. Lacier recalled (page 22).
    Defense proposes showing by the doctor that the defendant was delirious during his illness, indicating his serious condition.
    Objected to as immaterial and irrelevant.
    Objection sustained. Exception for defendant. [1]
    Defense offers in evidence an affidavit taken by Mary Horn-yak, the prosecutrix in this case, before a justice of the peace of Northampton county, for the purpose of fixing the time that she claims was the period of conception.
    Commonwealth objects as it is written in the English language, and is not competent, the defendant does not know anything about it, and it is absolutely immaterial, irrelevant and incompetent.
    Objection sustained. “ Exhibit A ” refused as evidence. [2]
    The court charged in part as follows :
    [Some contradictions of the defense’s witnesses have been commented on by counsel. It is a rule of law that where a witness is contradicted in a material part of the case, that then he is not to be believed as to the rest of his testimony and it may be thrown out.] [3]
    Verdict of guilty upon which judgment of sentence was ' passed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3) portion of charge as above, quoting it.

      E. 0. Nothstein, of Ereyman Nothstein, with him 'William 6r. Thomas, for appellant.

      Frank P. Sharkey, with him Cfeorge E. Crray, district attorney, for appellee.
    October 23, 1905 :
   Opinion bx

Pobter, J.,

The defendant was charged with fornication and bastardy. The prosecutrix testified that the offense was committed in the cellar of the house in which she lived, in the latter part of November or first of December, 1903. Defendant had denied under oath at the trial that he had at any time been guilty of the offense. Dr. Lacier was called as a witness and testified that he was a practicing physician and had attended the defendant who had suffered an attack of pleuro-pneumonia, in November and December, 1903, and that at the time to which the testimony of the prosecutrix referred the defendant had been seriously ill and confined to his bed. The defense proposed to show by the doctor “ that the defendant was delirious during his illness, indicating his serious condition;” the offer was objected to by the commonwealth as immaterial and. irrelevant, and the court sustained the objection; which ruling is the subject of the first specification of error. The contradiction between the testimony of the prosecutrix and that of the defendant was irreconcilable, and it was relevant and material for the jury to consider the physical condition of the defendant in determining whether the testimony of the prosecutrix was true or false. The evidence offered would have had a direct bearing upon the question whether the defendant committed the offense at the time and place charged. We are of the opinion that it ought, to have been received, and the first specification of error is sustained.

The appellant has not printed in his paper-book, as required by the rules of this court, the affidavit made by the prosecutrix, the rejection of which as evidence is the subject of the second specification of error, which is for that reason dismissed.

The learned judge in charging the jury used this language: “ Some contradictions of the defense’s witnesses have been commented upon by counsel. It is a rule of law that where a witness is contradicted in a material part of the case, that then he is not to be believed as to the rest of his testimony and it may be thrown out.” This language was no doubt inadvertently used by the learned judge, who probably meant to instruct the jury that if they were, satisfied a witness had intentionally testified falsely as to a material fact, they would be justified in refusing to believe his entire testimony; but the language used may have misled the jury. The mere fact that a witness has been contradicted is no warrant for disregarding his entire testimony ; it is for the jury to reconcile the contradictions if possible, and if that cannot be done to-ascertain whether the truth has been told by the witness or those who contradicted him. “ A mere conflict in the’ testimony is ■- not enough to condemn it, provided that out of all of it the facts relied upon merge with reasonable distinctness and certainty” : Jermyn v. McClure, 195 Pa. 245. We deem it proper to notice this slip, as the case must go back for a new trial, but as the charge was not excepted to we would not.reverse the judgment upon that ground.

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


author: Pobtek, J.,

text:
    Hennessey v. Baugh and Sons Company, Appellant.

      Negligence — Wagons—Evidence of ownership — Principal and agent — Question for jury.

    In a negligence case where the plaintiff has proved that the defendant operated upon the streets of a city, wagons of a particular kind, marked in a peculiar manner, and that such a wagon so marked was responsible for the accident, such proof is sufficient to sustain a finding by the jury, under proper instructions, that the wagon was the property of the defendant company.
    Proof of ownership, under such circumstances, is sufficient to sustain an inference in favor of a third party that a person in charge of the property was the agent or servant of the owner.

      Negligence — Excessive verdict — Damages.
    A verdict in an accident case will not be set aside as excessive where it appears that the plaintiff presented testimony as to specific items of loss and expense which aggregated within $5.00 of the amount of the verdict; that plaintiff lost the use of the wagon injured while it was being repaired, and that there was a delay of a year between the accident and the trial.
    Argued Oct. 12, 1905.
    Appeal, No. 167, Oct. T., 1905, by-defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1904, No. 388, on verdict for plaintiff in case of Michael Hennessey v. Baugh and Sons Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass for injuries to a wagon and horse. Before Carr, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $220.56. Defendant appealed.

      Errors assigned were (1) that the court erred in refusing binding instructions for defendant; (2) that the verdict was excessive.

      Maurice W. Sloan, for appellant.
    There is no evidence that the wagon which ran into the plaintiff was owned by the defendant or that the driver was in the defendant’s employ: Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Edgeworth v. Wood, 58 N. J. Law, 463 (33 Atl. Repr. 940); Joyce v. Capel, 8 C. & P. 370.

      Henry K. Fries, for appellee.
    October 23,1905:
   Opinion by

Pobtek, J.,

The first assignment of-error is based upon the refusal of the court below to give binding instructions in favor of the defendant. The evidence clearly established that the horse and wagon of the plaintiff were damaged by. a collision resulting from the negligence of the driver of another team, and the jury so found. The question to be considered, and the only one which has been argued under this specification of error, is whether there was sufficient evidence to warrant a finding that the defendant company was responsible for the negligence of the driver. Benjamin F. Roy, the driver of the horse of the plaintiff which was injured, testified that he knew the teams of the defendant company and that the team which' caused the injury was one of them ; he testified in detail as to the kind of wagons used by the defendant company, and that they were all marked on the side with the initials “B. & S. Co.,” and that each particular wagon was designated by a letter on the side, instead of' a number; that the particular wagon which caused the injury had upon its side, in the style of lettering used by the defendant company, with which he was familiar, the marks “ B. & S. Co.,” and underneath that the letter “ Q.” This witness further testified as to the kind of wagons which the defendant company used and the peculiarities of their construction. Another' witness testified that the defendant company owned and operated, in the city of Philadelphia, a number of wagons constructed and marked in the peculiar manner described in the testimony of the witness Roy. It is not unusual for the owners of wagons and other property to mark, designate or brand it with initials or some peculiar device, and when it is by evidence established that such is their custom, the presence of the marking upon the wagons must be given precisely the same effect as if the name of the owner were there stated in full.

The plaintiff having proved that the defendant company operated, upon the streets of the city, wagons of a particular kind marked in a peculiar manner, and that such a wagon so marked was responsible for this accident, this was sufficient to sustain a finding by the jury, under proper instructions, that the wagon was' the property of the defendant company: Hershinger v. Pennsylvania Railroad Company, 25 Pa. Superior Ct. 147. Proof of ownership, under such circumstances, is sufficient to sustain an inference in favor of a third party that a person in charge of property was the agent or servant of the owner: McCoun v. N. Y. Central, etc., R. R. Co., 66 Barb. 338; Norris v. Kohler, 41 N. Y. 42; Edgeworth v. Wood, 58 N. J. Law, 463 (33 Atl. Repr. 940); Connor v. Pennsylvania Railroad Company, 24 Pa. Superior Ct. 241. The responsibility of the defendant company for the negligence of the driver was, under the evidence in this case, a question for the jury.

' The specification of error that, “ The verdict is excessive,” is not worthy of consideration. The plaintiff presented testimony as to specific items of loss and expense which aggregated ■ within $5.00 of the amount of this verdict, without taking into consideration the loss and inconvenience to which he was put in having a loaded wagon broken down in a distant part of the city, when it became necessary to return the injured horse ■ to the stable and procure another horse to haul the damaged wagon with its load. The appellant entirely loses sight of the. fact that the plaintiff lost the use of his wagon while it was being repaired. There was a delay of almost a year between the accident and the trial, and it was proper for the jury to consider this delay and allow compensation therefor in their verdict. This is certainly not a case in which an appellate ■ court should interfere.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Montgomery’s Estate, Appellant, v. Pittsburg.

      Road law — Paving—Grading—Ordinance—Deviation from line of street.

    A city passed an ordinance locating the center line of a street. Subsequently an abutting owner with others filed a petition for the grading of the street. In laying out and grading the street there was, in. one portion of it, a deviation of from two to ten feet from the line designated in the ordinance authorizing the opening of the street. In proceedings for damages for the grading the petitioning owner filed exceptions, setting up the deviation. While these proceedings were pending a majority of the owners petitioned for the paving of the street and a paving ordinance was passed. The city officials, however, hesitated to proceed because of the mistake in the grading, and thereupon several of the property owners signed an agreement waiving any objection they had by reason of the mistake. Subsequently the owner who had filed exceptions in the grading proceedings withdrew these exceptions, and the city thereupon proceeded to pave the street according to its graded lines. It did not clearly appear that any portion of the pavement was outside the lines of the street as originally ordained. Subsequently proceedings were instituted to assess damages for the paving. Held, that the owner who had withdrawn her exceptions to the grading proceedings, if not estopped from objecting to assessments for the paving because of the deviation, was not entitled to binding instructions that she was not liable for any portion of the assessment.
    Argued April 11, 1905.
    Appeal, No. 141, April T., 1905, by The Union Trust Company of Pittsburg, Administrator of Johanna Montgomery, deceased, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 489, on verdict for the City of Pittsburg in case of Johanna Montgomery’s Estate, The Union Trust Company of Pittsburg, Administrator, c. t. a. v. City of Pittsburg.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from report of viewers. Before Kennedy, P. J.
    The facts appear by the opinion of the Superior Court.
    At the trial the jury returned a certificate in favor of the city of Pittsburg for $1,038.81, special benefits, subject to question of law reserved. Subsequently the court entered judgment for the city on the verdict.

      Error assigned was in entering judgment for the city on the verdict.

      Wm. M. Hall, Jr., with him Horace J. Miller and Watson B. Adair, for appellant.
    A city can create a valid municipal lien for street improvements only when the improvement is made in pursuance of law and the mode established by statute or ordinance is strictly followed: Coxe v. Philadelphia, 47 Pa. 9; Hershberger v. Pittsburg, 115 Pa. 78 ; Morewood Avenue, 159 Pa. 39; Scranton v. Kingsbury, 4 Pa. Dist. Rep. 555; Western Penna. Railway Co. v. Allegheny, 92 Pa. 100 ; Fell v. Phila-. delphia, 81 Pa. 58; Wilson v. Allegheny, 79 Pa. 272; Reilly v. Phila. 60 Pa. 467.

      T. I). Vdrnahan, with him W. B. Rodgers, for appellee.—
    The appellant is estopped : Shiloh Street, 165 Pa. 386.
    Mrs. Montgomery’s property does not abut upon that part of the street which appellant claims was unlawfully shifted* It is several hundred feet distant from the point of change and is not affected by it. She has therefore no reason to complain: Erie v. Butler, 120 Pa. 374; Pittsburg v. MacConnell, 130 Pa. 463.
    October 9, 1905:
   Opinion by

Rice, P. J.,

This is an appeal from a judgment upon a verdict in an issue framed for the determination of the damages and benefits to the appellant’s property arising out of the paving and curbing of Flowers avenue in the city of Pittsburg between Folsom street and Calvary cemetery. The prior proceedings stated chronologically were as follows : April 4,1878, ordinance locating center line of Flowers avenue; April, 1878, petition of property owners for passage of ordinance authorizing the opening of the street; July 12, 1878, ordinance authorizing and directing the city engineer to 'survey and open the street at width of fifty feet “ in accordance with a plan on file in the engineer’s office approved by ” the first mentioned ordinance, and providing that the damages and benefits be assessed and collected in accordance with the act of January 6, 1864, concerning streets and sewers in the city of Pittsburg and its supplements; September, 1897, petition of Johanna Montgomery and others, being a majority in interest and number of owners of property on Flowers avenue between Folsom street and Calvary cemetery line, for the passage of an ordinance authorizing the grading of the street between the points named; October 11,1897, ordinance establishing the grade of the street; December 6,1897, ordinance pursuant to above petition authorizing the grading of the street, and providing that the cost and expense be assessed and collected in accordance with the statutes relating thereto and regulating same; April, 1900, petition of majority in interest and number of owners of abutting properties for passage of ordinance authorizing the paving and curbing of the street between the points above mentioned-; April 24, 1900, ordinance pursuant to above petition providing that the street be paved and curbed, and that the cost, damages and expenses be assessed against and collected' from properties specially benefited; September 13,1902, report of viewers assessing $1,038.81 as special benefits against the property of the estate of Johanna Montgomery; October 13, 1902, appeal on behalf of estate of Johanna Montgomery, deceased, to the court of common pleas, which resulted in a verdict against the estate for the sum named, subject to the question of law reserved, “whether there is any evidence to be submitted to the jury entitling the city of Pittsburg to recover special benefits.” The court in an opinion filed by the learned president judge decided the question in favor of the city and entered judgment on the verdict. The matters assigned as error are, first, the discharge of the appellant’s rule to show cause why judgment should not be entered in favor of the city without a certificate in its favor and the verdict set aside as to such certificate; second, deciding adversely to the appellant the question of law reserved.

The line of the street as opened, graded and paved in front of the appellant’s property corresponds exactly- with the line described in the locating ordinance of April 4, 1878, but it was claimed on the trial that at a point several hundred feet further east and from there to the eastern terminus the former line deviated materially from the later. This was the ground of their defense.

It appears that the latter line has six angles, and that the fifth course, as set forth in the ordinance (the filed plan referred to in the opening ordinance was not brought up for our inspection) is “ thence deflecting 11° 58’ left a distance of 247.23 feet to east five feet running line of E avenue,” now called Eddington street. According to the testimony of appellant’s witness, who was the city engineer at the time of the grading of the street but not at the time of the trial, the actual distance between the beginning point of this course and the five feet running line of Eddington street is 196.39 feet, or 50.84 feet less than the distance specified by the ordinance. He testified that in the survey made preliminary to the grading (Eddington street had not been opened upon the ground at this time) the above discrepancy was discovered and called to his attention, but he concluded, and so directed, that the distance specified in the locating ordinance of April 4, 1878 would control. The work was done in accordance with his direction, with the result that east of Eddington street the centre line of Flowers avenue, as graded, deviated from two to nine and one-half feet from the true center line, assuming that the Call for the east running line of Eddington street, and not the specified distance, determined the true location of • the angle at the end of the fifth course. The street was paved and curbed exactly on the line of the graded street. On the trial of the issue the appellant set up and gave evidence tending to prove the above deviation, but we find no intimation in the testimony of any of their witnesses to support the claim now made, that owing to a failure to follow the true course of the above mentioned section of the line, there is a variance of 460 feet between the eastern terminus of the street as graded and paved and the eastern terminus of the street as described in the locating ordinance of April 4, 1878. On the contrary, the clear import of the testimony of their witnesses is, that, except for the divergence caused by taking the specified length of the fifth course, instead of the call for the running line of Eddington street, as the controlling element in the description, the street as graded and paved conforms to the requirements of the locating ordinance. The map offered in evidence by them shows the same. The appellants called no other witness to explain or contradict this testimony, and made no suggestion by point or otherwise, so far as the record shows, calling the attention of the trial judge to any other claim of variance. None other was alluded to in his charge. Without going further into detail as to the position taken by the parties, we conclude, that as the case was presented by the appellants on the trial the city is not called upon to meet any other objection to the liability of their property to assessment and that the case should be disposed of here upon that theory.

It is not disputed that the petition for paving was signed by the required number of property owners, but it is argued that, in order to sustain the assessment of the cost upon the abutting property “ it must appear affirmatively that there was a petition for the paving of the street as paved,” which it is alleged does not appear in this case. In considering this proposition it is important to notice that the grading of the street had been completed between three and four months before the petition for paving was presented, and that the ordinance under which the grading was done contemplated an assessment of the cost and expenses upon abutting properties, to the extent of benefits conferred, and it is stated in the opinion of the learned judge below that the latter proceedings were pending at that time. In view of these facts, it seems plain, as he says, that the property owners “ were asking for the completion of the improvement of the street as they found it on the ground already partly improved and well known to everybody in the street.” The petition was broad enough in terms, and interpreted. in the light of attendant circumstances, was broad enough in intent, to sustain the assessment if that was all that was required.

It is further urged that a city can create a valid municipal lien for street improvement only when the improvement is made in pursuance of law and the mode established by statute or ordinance is strictly followed. We are referred to the principle thus stated by Justice Mercur in Western Penna. Railway Co. v. Allegheny, 92 Pa. 100: “The city can create a valid municipal lien for improving a street only when the improvement is made in pursuance of law. The street must first be duly established. Its width must be fixed, and the improvement made within its lines, before the expense thereof can be imposed on the lands of an adjoining owner.” But we suppose that it will not be disputed that the property owners may estop themselves to deny in the subsequent proceeding to assess the damages and benefits that the improvement is within the proper street lines. This ease furnishes, an apt illustration. After the street had been graded upon the lines determined upon by the city engineer as above stated, and the paving ordinance had been passed and the contract let, the city officials hesitated to proceed because of the mistake in the grading of the street above referred to, if it was a mistake. Thereupon thirteen of the property owners, we quote from the judge’s charge, “ signed an agreement, waiving any objection they had to the paving of the street, in accordance with the lines thereof, that had been graded, waiving any objection to that, or any right they might have to contest the assessment as made, and they-asked the city to proceed and pave the street just as it had been graded.” Assuming these to be the facts and that the city was induced by their action to proceed with the paving of the street upon the lines within which it had been opened and graded, we think he was right in saying, so far as these persons were concerned, “ Having done that, it does not lie in their mouths now to object to any assessment by reason of that change in the location of the street, the shifting of it to one side.” It is true Johanna Montgomery did not sign this paper, but it does appear that she and Mr. Haynes, who procured the paper to be signed and acted upon by the city officials, had previously filed exceptions to the assessment of benefits reported by the viewers in the grading proceedings in which she alleged that the location of the street had been shifted, and that about the same time the paper was signed these exceptions were withdrawn by them pursuant to leave of court formally granted upon their joint application. The city then went ahead and completed the payment upon the exact lines of the street as actually opened upon the ground and graded. We do not see how it can be doubted that under the doctrine of Shiloh Street, 165 Pa. 886, the action of the city engineer in locating the street upon the ground under the grading ordinance was adopted and ratified by the city. See also Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273, and cases there cited. Further, bearing in mind that Johanna Montgomery was one of the petitioners for the grading of the street, and that she withdrew her exceptions at the time when, of all others, it was appropriate that she should raise the question whether the street as opened on the ground and graded was on the true line, it may well be doubted whether she could consistently raise the objection after the city had laid the pavement upon the faith, in part, of her action.

Granting, however, that she and those who succeeded to the property upon her death were not estopped to deny that in grading that section of the street a mistake was made, in consequence of which the center line of the street as graded is from two to nine and one-half feet north of the center line called for by the ordinance of 1878, how does the case stand? Beginning at Folsom street and extending along the front of appellant’s property and several hundred feet beyond, the pavement was laid within the lines of the street as claimed by them and of the full width of thirty feet. Beyond that to the other terminus the width of the pavement is the same, and even if it be conceded that its center line deviates from the center line of the street from two to ten feet, yet as the street is fifty feet wide this deviation would not necessarily put any part of the pavement outside the street lines and make the case parallel with Western Penna. Railway Co. v. Allegheny, 92 Pa. 100. Moreover in that case the trespass in building the wall on the land of the company against the protest of the latter did not stand in the way of the recovery by the city for the paving and curbing, which, with the wall, constituted the improvement for which the lien was claimed. ■ As pointed out in the later case of Athens Boro. v. Carmer, 169 Pa. 426, for what was lawfully done the city was allowed to recover. So here, even if it be conceded, which does not clearly appear, that from two to nine and one-half feet of the pavement on the north side of the street east of Eddington street was laid on private property the deviation would not be a complete defense to the right of the city to recover special assessments under the peculiar circumstances of this case, but at most would only constitute a defense pro tanto. It follows that the court committed no error in deciding the question of law reserved in the affirmative.

Judgment affirmed.


text:
    Twibill’s Estate.

      Appeals — Delay—Paper-books—Penalty for delay.

    The penalty for taking an appeal for delay will be allowed where the uneontradicted petition of the appellee avers that the suit was non-prossed for want of service of paper-books, that no paper-books have been filed or served, that no notification had been given to appellee or his counsel of any intention to abandon the appeal, and that the appeal had been taken, in the appellee’s belief, solely for the purpose of delay.
    Petition to impose penalty on appeal for delay.
    The petition averred that the appeal was taken June 1,1905, and non-prossed for want of service of paper-books on October 2, 1905.
    The petition continued as follows:
    1 ‘ The said appellee believes that the said appeal was taken solely for the purpose of delay. The said appeal was taken immediately after the exception of the accountant in the court below was dismissed. The single assignment of error simply says that the court below erred in allowing the claim and there is no indication of record as to the nature of any error committed by the court below in the premises. No paper-books have, apparently, been prepared and none have certainly been filed or served. In the long interval that has elapsed from the time of the taking of the appeal to the time of the entering of the non-pros, no notification of any kind has been given to the appellee or his counsel of any intention to abandon the appeal.”
    No answer was filed to the petition.

      Thomas James Meagher, for the petitioner.
    October 23, 1905 :
   Per Curiam,

The rule to show cause granted October 9, 1905, is made absolute, and an additional attorney fee of $25.00 and damages at the rate of six per centum in additional to legal interest, are awarded in favor of Joseph H. McBride, the appellee, against Stanley Bennet, the appellant.


text:
    Dietrich v. Loughran, Appellant.

      Appeals — Delay—Paper-books—Penalty for delay.

    Where an appeal is non-prossed and it is made to appear to the court .that no action was taken by the appellant after the appeal was taken out, that no paper-book was served upon the appellee and that no notice was given to the appellee of an intention to abandon the appeal, the court will impose the penalty px-ovided by the Act of May 19, 1897, P. L. 67.
    Petition to impose penalty on appeal for delay.
    The petition averred that the appeal was taken on March 14, 1905, and non-prossed on October 2, 1905 for want of service of paper-book. The petition further alleged that the appellee believes that the appeal was taken solely for delay. It also averred that no paper-books had been filed and served, and that no notification of any kind had been given to the appellee or his counsel of any intention to abandon the appeal. The petition also charged that the assignments of error were frivolous.
    An answer was filed denying that the appeal was taken solely for delay, or that the assignments of error were frivolous.
    The answer averred that the paper-books had been prepared, but not filed or served. Some other matters were stated in the answer as an excuse for abandoning the appeal, but their relevancy did not appear.

      Thomas James Meagher, for the petitioner.

      Gfeorge W. Watt and James M. Dohan, for the respondent.
    October 23, 1905 :
   Per Curiam,

The rule to show cause, granted October 9,1905, is made absolute, and an additional attorney fee of $25.00 and damages at the rate of six per centum in addition to the legal interest, are awarded in favor of Frank J. Dietrich, the appellee, and against James Loughran, the appellant, in accordance with provisions of section 21 of the Act of May 19, 1897, P. L. 67.