text:
    Riley v. Pennsylvania Company, Appellant.

      Railroads — Occupation of street — Station—Nuisance—Act of April 11, 1849, P. L. 754 — Equity.
    Under the Ohio act of February 24, 1848, sec. 11, adopted in Pennsylvania by the Act of April 11, 1849, P. L. 754, entitled, “An Act to incorporate the Ohio & Pennsylvania Railroad Company,” the Pennsylvania company, the successor in title to the Ohio & Pennsylvania Railroad Company, has the right to occupy a street in a borough or township with the municipal consent, to the extent only of a width sufficient for its rails and ties, but not for passenger depots or freight houses.
    Even if it should be assumed that section eleven of the Ohio act gave to the railroad company the right at the time of the original location of the railroad, to encroach upon the street for the purposes of a station, this right will not be extended, years after the railroad was located and á station established outside the lines of the street, to a right to encroach on the street by an extension of the station.
    The power of a railroad company to occupy a public street or highway must be derived directly, or indirectly, from legislative grant, and must be given in plain words, or by necessary implication, or be taken not to exist.
    Where such an encroachment is about to be attempted, a citizen owning property on the opposite side of the street, whose light and view are interfered with, and whose right to use the street may be interfered with by increased travel in the future, and who has bought his property according to a plan of lots on which the street was indicated, has a standing in equity to enjoin the railroad company from encroaching on the street for station purposes.
    An abutting owner who must use a street as a means of access to his property has a special interest therein, which gives him a standing to invoke the aid of equity to prevent unlawful obstruction of the street which other members of the general public have not.
    The general rule is that a railroad company occupying a public street without authority by legislative grant in clear words, or by unavoidable implication, constitutes a public nuisance, and may be enjoined at the suit of a private citizen specially injured.

      Deeds — Plan of lots — Streets—Right to use streets.

    When an owner of land subdivides it intb lots and lays out streets, alleys or courts, for the accommodation of the lots, the purchasers of the lots acquire a right of property appurtenant to the lots, in the use of the streets, alleys or courts, without regard to whether any right is by the plotting and conveyances vested in the public.

      Equity — Equity practice — Multifariousness—Parties.
    Several parties may join as complainants in a bill of equity although there is no privity among them, where they seek to avert an injury which would affect them all in the same manner, although perhaps, not in the same degree. In such a case a failure of evidence as to an alleged special injury to some of the complainants, but not to all, is not ground for dismissing the bill after a full hearing upon the merits.

      Statutes — Construction—Legislative intent.

    The hardship, or inconvenience that would result from one possible interpretation of the words of a statute, may be considered, amongst other things in determining the legislative intent, where the words are as plainly open to an interpretation that would lead to a different result, and still not defeat the general purpose of the enactment.
    Argued April 11, 1906.
    Appeal, No. 141, April T,, 1904, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. Term, 1902, No. 13, on bill in equity in case of Patrick Riley etal. v. Pennsylvania Company.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Rodgers, J., found the facts to be as follows:
    So far as the facts developed at the trial are material we find as follows:
    1. Patrick Riley, James Creese, Samuel Creese and Charles Weber, plaintiffs, are severally the owners of certain lots of ground, situate in the village of Leetsdale, Leet township, county of Allegheny, all of said lots being situated and fronting on the westerly side of First street, as laid out and located in a certain plan of lots by the United States Building & Loan Association of Pittsburg, said plan being recorded in the recorder’s office of this county in plan book vol. 4, pages 256, 257 and 258, all of said premises being lots and parts of lots in said plan.
    2. The right of way of the Pittsburg, Fort Wayne & Chicago Railway Company, which is leased and operated by the Pennsylvania company, defendant, extends along and abuts upon the easterly line of said First street and opposite to all of plaintiffs’ said premises, and on said right of way the railroad tracks of said railway company are laid and operated.
    3. At a point on said First street, opposite to the premises of Patrick Riley, one of the plaintiffs, defendant has erected a railroad passenger station or shed. Said shed occupies the surface of First street about thirteen feet in width by about sixty-seven feet in length, the defendant is now so in occupancy of said portion of First street.
    4. That said occupancy of the portion of First street is an injury to plaintiffs property, causing, or being liable to cause, inconvenience to plaintiffs and is a partial obstruction to their view.
    5. That prior to the construction of said building defendant company made application to the township commissioners for their assent thereto and submitted a plan to said commissioners,, and after the construction of said building said commissioners passed a resolution at their regular meeting on November 4, 1901, giving their consent thereto.
    6. The commissioners of Leet township have not accepted said First street as a public highway by ordinance, as required by the act of assembly, entitled “ An Act to provide for the classification of the townships of the Commonwealth with respect to their population into two classes, and to prescribe the form of government for townships of each class,” approved April 28, 1899, P. L. 104.
    CONCLUSIONS OF LAW.
    1. The street in question being a part of a plan of lots all the properties of plaintiffs, being a part of said plan and abutting on the obstructed highway, while the damage to each of the plaintiffs differs in degree it does not differ in kind, and the bill therefore is not multifarious.
    2. The action of the township commissioners in giving their assent to the occupation of the highway was without authority in law, and confers no right on defendant company as against these plaintiffs.
    3. While the damage suffered by plaintiffs is not large, it is a material damage, particularly as to one of plaintiffs.
    4. The structure erected by defendant upon the street was erected without authority of law, was a trespass on said highway, and its continuance and maintenance thereon is a nuisance as to plaintiffs.
    Let a decree be drawn granting a perpetual injunction against the Pennsylvania company, defendant, its officers, agents and employees from maintaining upon said First street the passenger station, shed or building erected thereon. The costs to be. paid by defendant.

      Error assigned was the decree of the court.

      E. H Hawkins, of Dalzell, Fisher, Young and Hawkins, for appellant.
    — -The building of a portion of this platform and shelter shed on a portion of the public street is not a nuisance: Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Cleveland & Pittsburg R. R. Co. v. Speer, 56 Pa. 325; Phila. & Trenton R. R. Co.’s Case, 6 Wharton, 25; Mifflin v. Harrisburg, Portsmouth, Mt. Joy & Lancaster R. R. Co., 16 Pa. 182; Commonwealth v. Erie & Northeast R. R. Co., 27 Pa. 339; Pittsburg v. Penna. R. R. Co., 48 Pa. 355 ; Borough of Milvale v. Evergreen Ry. Co., 131 Pa. 1; Mercer v. P., F. W. & C. R. R. Co., 36 Pa. 99; Duncan v. Penna. R. R. Co., 94 Pa. 435.
    There can be therefore no question but that the Pennsylvania company as lessee and as the company charged with the duty of operating the Pittsburg, Fort Wayne & Chicago Railway is vested with all the powers of that company: Penna. R. R. Co. v. Sly, 65 Pa. 205; N. Y. & Erie R. R. Co. v. Young, 33 Pa. 175 ; Petition of N. Y., L. & W. Ry. Co., 99 N. Y. 12 (1 N. E. Repr. 27) ; Abbott v. N. Y. &. N. E. Ry. Co., 145 Mass. 450 (15 N. E. Repr. 91); Chicago & Western Ind. R. R. C. v. Ill. Cent. R. R. Co., 113 Ill. 156; Vt. Cent. R. R. Co. v. Baxter, 22 Vt. 365.
    Neither can there be any doubt that the power of the railroad company is a continuing power which was not exhausted upon the first location of the railroad: Toledo & Wabash Ry. v. Daniels, 16 Ohio St. 390; C., B. & Q. R. R. Co. v. Wilson, 17 Ill. 123.
    The plaintiffs sustained no special damage differing in kind from that of the general public: Gold v. Philadelphia, 115 Pa. 184; Black v. P. & R. R. R. Co. 58 Pa. 249; Higbee v. R. R. etc., Co., 20 N. J. Eq. 435; Morris & Essex R. R. Co. v. Prudden, 20 N. J. Eq. 530; Sparkhawk v. Union Pass. Ry. Co., 54 Pa. 401; Wilson v. Strawbridge, 4 W. N. C. 35.
    The bill is multifarious : Morris & Essex R. R. Co. v. Prudden, 20 N. J. Eq. 580.

      February 25, 1907:

      James Balph, with, him B. A. Balph, for appellee.
   Opinion by

Rice, P. J.,

The appellant’s first proposition, as clearly stated by its counsel, is that the occupation of this portion — a strip about thirteen feet wide and sixty-seven feet long — of the public street by a portion of the passenger depot of the railroad company, with the consent of the municipal authorities, is not an illegal act; on the contrary, it is expressly authorized by law, and what is authorized by law cannot be a nuisance. The only statutory authority for the act to which our notice has been directed is supposed to be contained in the eleventh section of the act regulating railroads adopted by the legislature of Ohio on February 24, 1848, which became part of the law of this commonwealth to the extent and in the manner following. On February 24 of the same year the Ohio and Pennsylvania R. R. Co., having Pittsburg for the eastern terminus of its railroad, was incorporatod by act of the Ohio legislature, and it was therein provided that the company should have all the powers and privileges and be subject to all the restrictions and provisions of the act regulating railroad companies above referred to. It further provided that when the legislature of Pennsylvania should pass a law giving their assent to and confirming the provisions of this act of February 24, then it should take effect and be in force in that state. In April of the same year the act of the Pennsylvania legislature entitled “ An act to incorporate the Ohio and Pennsylvania Railroad Company ” was approved, whereby the full and entire assent of this commonwealth was given to each and all of the provisions of the Ohio act of February 24, and it was therein declared that the said act was adopted, ratified and confirmed and enacted into a law of this commonwealth, and all and each of the provisions, conditions and restrictions thereof, as fully and as effectually as if the same were enacted section by section. It further provided that exemplified copies of the two Ohio acts above referred to should be annexed to this act, and published in the same manner. Accordingly the three acts were published in the appendix to pamphlet laws of 1849, at pages 754 et seq. The Pittsburg, Fort Wayne and Chicago Ry. Co., the successor to the rights, privileges and property of the Ohio and Pennsylvania R. R. Co., leased the railway and franchises to the Pennsylvania R. R. Co., which lease was assigned by the latter company to the Pennsylvania company, the defendant in the present case. It is unnecessary to go into further detail, because it is not questioned that the defendant company, which is charged with the' duty of maintaining and operating the railroad, is as fully invested with the power contemplated by the section above referred to as the Ohio and Pennsylvania R. R. Co. would be if it were still operating the railroad under the original charter. The section so far as material here reads as follows : “ Sec. 11. If it shall be necessary in the location of any part of any railroad to occupy any road, street, alley or public way or ground of any kind, or any part thereof, it shall be competent for the municipal or other corporation or public officers or public authorities owning or having charge thereof, and the railroad company to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied.”

“ It does not admit of a doubt in this state that a railroad company may use a public street or highway when authorized by its charter, either expressly or inferentially: ” Cleveland & Pittsburg R. R. Co. v. Speer, 56 Pa. 325, citing Phila. & Trenton R. R. Co.’s Case, 6 Wheat. 25, 43 ; Mifflin v. Harrisburg, Portsmouth, etc., R. R. Co., 16 Pa. 182; Commonwealth v. Erie & Northeast R. R. Co., 27 Pa. 339, 354. And in Mercer v. Pittsburg, Ft. Wayne & Chicago R. R. Co., 36 Pa. 99, where the section of the charter above quoted was under consideration, it was held that the exercise of the power to authorize the building of a railroad on a street or other public highway may be devolved by the legislature upon the local authorities. These cases, it is true, relate to occupation of a highway by a railroad proper, but the principle that the power of the state over the highways thereof is supreme would sustain legislative authorization of the occupation of a highway by such appendages or adjuncts of the railroad as passenger depots, freight houses, shelter sheds, and the like, subject, of course, to such obligation as may be imposed by the constitution to make or secure compensation to individuals affected thereby. The question, therefore, is not of the power but of the intention of the legislature to delegate to local authorities the discretionary power to permit the railroad company to occupy a highway in that manner. In the consideration of this question it is well to notice that if the section delegates to the local authorities the power to permit such structures to be erected in a highway, it contains no restrictive words that would prevent the occupation of the entire width of the highway. Thus there would be conferred on township supervisors and township commissioners, who have not been intrusted with the general authority to vacate highways, special authority to do what would be equivalent to that, so far as the ordinary public uses for which the highway was laid out or dedicated are concerned. We are not unmindful of the principle that where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the interpretation must conform to and carry out that intent, and that it matters not, in such a case, what the consequences may be. But it is equally true that the manifest injustice, the hardship or inconvenience that would result from one possible interpretation of the words may be considered, amongst other things, in determining the legislative intent, where the words are as plainly open to an interpretation that would lead to a different result and still not defeat the general purpose of the enactment. It is proper, therefore, to notice further, that neither the section itself, nor any other section of the act, provides an adequate remedy for the substantial injury that would be wrought in many instances by the unrestrained exercise of the extraordinary power to erect buildings in a highway, especially in a street in a borough or city or other thickly populated community. It is not to be supposed that the legislature, even at that early day when railroad privileges were so freely granted, was not cognizant of, or not regardful of, other interests that would be prejudicially affected by the grant of a privilege to bar the public and abutting property owners from the use of the highway for ordinary purposes. And the force of the consideration we have alluded to is neither strengthened nor weakened by the fact that an adequate remedy has, or has not, been afforded by later legislative enactment or constitutional provision. Our concern is with the intention 'of the legislature that enacted the section under consideration. What may have been done since cannot affect that question. Looking then more closely at the words of the section we see that the occupation of the highway by the location thereon of the railroad, or part thereof, is the privilege it confers ; it does not confer the privilege, certainly not in express terms, upon the company to occupy the highway for any and every legitimate purpose of its incorporation. It is the location of the railroad, or part thereof, to which it relates. Unquestionably the word railroad, in some connections, would properly include, not merely the steel rails and ties upon which the cars run, but also the cars themselves, the locomotives, the passenger depots, the freight houses, and every adjunct or appendage of similar nature. In other connections it would be improper to ascribe to it so broad a meaning. For example, in construing an act of congress declaring that a certain railroad should be and remain a public highway for the use of the government of the United States, free from all toll or other charge for transportation of any property or troops of the United States, Justice Bkax>ly said: “We know, as well as we know the sense of any phrase in the English language which has a historical meaning and application, what is meant when a railroad is spoken of as a public highway. We know that it refers to the immovable structure stretching across the country, graded and railed for the use of the locomotive and its train of cars: ” Lake Superior, etc., R. R. Co. v. U. S., 93 U. S. 442. So under an English statute which directed the land used as a railway to be taxed at a less rate than other land, it was held, that this partial exemption applied only to the way on which the cars actually go, including merely the line itself, the turntables, the sidings, and the land necessarily used for supporting this way, as, for example, embankments, etc.; but that the adjuncts, such as stations, platforms projecting beyond the adjacent width of the road,” offices, engine sheds, warehouses, and other fixed buildings, though necessary for the working of the railway, were not part of it within the meaning of the enactment; South Wales Ry. Co. v. Board of Health, 4 Ellis & Blackburn, 189. This case was cited by Lewis, C. J., in Mayor, etc., of Allegheny v. Ohio & Penna. R. R. Co., 26 Pa. 355, which has such a direct bearing upon the question before us as to warrant extended reference to it. The case originated by a bill filed by tbe municipal authorities of the city of Allegheny to restrain the Ohio & Pennsylvania R. R. Co., from using certain public ground called the South Common for its tracks and other railroad purposes. The company defended under an ordinance or resolution of councils, which provided that as far as the title of the city extended, the right of way fifty feet wide over the common, as the same had been located by the company, should be granted to the company free of charge; and the ordinance was defended, in part, under the eleventh section of the company’s charter now under consideration. Lewis, C. J., with whom Woodward, J., concurred, was of opinion that as against the city the company had the right to occupy the common to the extent contemplated by the ordinance; Black, J., and Knox, J., were of opinion that the ordinance was null and void for want of power in the city to make the grant, without obtaining releases from the commonors as provided by the act of 1840, and would have granted an injunction excluding the company from the common altogether; but as the other two members of the court who heard the case would not assent to this, they united with them in the decree affording the partial relief indicated in the opinion of the chief justice, rather than have the bill dismissed. In that opinion, after showing that under a grant hy the commonwealth, or by a municipal corporation under authority derived from the commonwealth, at the instance and for the convenience of a railroad company, nothing is to be taken by implication against the public except what necessarily flows from the nature and terms of the grant, the chief justice said: “ Where a right of way is granted through territories of such extent, as to render depots and stations for water and wood indispensable, at proper points within the limits of the grant, and where the land is either unoccupied or so sparsely populated, that these structures would not .be likely to produce serious inconvenience, the right to erect them might be implied from the nature and extent of the grant. But the grant of a right of way through a small strip of ground, designed for public uses in a densely populated city, stands upon a different footing. Under such circumstances it is not reasonable to suppose that anything further was intended by either party, than to contract for the use of so much ground as shall be necessary for the line of the railway alone, and that the ground so granted shall be used only for the ordinary purposes of passing and repassing thereon. This is necessarily the meaning where the grant is from the public authorities, at the instance of the grantee, and passes away the public rights.” He then cites the English case above referred to and proceeds : “ Keeping these principles in view, it seems plain that the grant of ‘ a right of way fifty feet wide, through the commons of the city to Federal street,’ is limited to the right of passage, and to receiving and discharging freight and passengers within the fifty feet fixed by the grant.” Further on he says : “ The right to receive and discharge passengers, even within the fifty feet, exists only by implication, and is not to be carried farther than necessity requires. As the present terminus of the railway is at this point, this right would seem to be to some extent a necessary incident of the right of way. But the company have no right to occupy any part of the fifty feet by any structures except the railroad itself. They have no authority under the contract, or otherwise, to erect, even within the fifty feet, any warehouses, depot-houses, car-houses, wood-houses, water-houses, or any other buildings for receiving or discharging passengers or freight on that part of the railroad which passes through the common.” These views were expressed more particularly with reference to the ordinance ; therefore we do not cite them as an authoritative construction of the section of the company’s charter through which the authority to enact the ordinance was derived. But it is difficult to avoid the conclusion that the principle of construction applicable to the grant to a railroad company of a right of way over a public common is applicable to the legislative grant under consideration. In what respect is such a grant broader in terms than the former ? Speaking for myself, I can see no such substantial difference as could be pleaded successfully in justification of the occupation of the highway by the kind of buildings above described. It has been said that the words railroad ex vi termini include sidings : Black v. Phila. & Reading R. R. Co., 58 Pa. 249, but no case has been brought to our attention in which a delegation of power to township officers to permit the occupation of highways in the location of a railroad has been held to include authority to permit, upon such terms and conditions as are satisfactory to them, the occupation of a highway by that kind of buildings. The right to erect a watch box such as is described in Pickup v. Phila. & Reading Ry. Co., 29 Pa. Superior Ct. 631, and Wilson v. Phila. & Reading Ry. Co., 5 W. N. C. 185, in a highway upon which, a railroad is lawfully laid, stands on an entirely different footing; and, without deciding the point, we do not say that in such a case (a railroad laid in the highway) a platform for the use of passengers to enter and alight from the cars might not be a permissible structure in the highway. But it would seem to be an un-, warranted construction of the delegated power to say that it includes the right to permit a highway to be occupied wholly or in part by a passenger depot or similar building where the proposed location of the railroad itself is not upon the highway.

But even if it be assumed that the delegated power was broad enough to authorize that at the time of the location of the railroad, how was it at the time it was attempted to be exercised in the present instance ? At that time the company’s railroad had been located and in operation for years. Its passenger depot at this station was also located and in use op the north side of the railroad, and on the south side there was sufficient space to enable the company to maintain a platform eight feet wide without encroachment upon the street upon which the company’s right of way abutted. This being the situation, the company proposed to erect, and did erect, on the south side of the railroad in connection with the platform just referred to a passenger station or shed for the accommodation of east-bound passengers, and steps leading from it to the street. It stands six feet above the grade of the street, is supported on posts, is covered, part of it is inclosed in glass, and it occupies a portion of the street about thirteen feet in width and sixty-seven feet in length. We note, also, although we do not regard this negative finding as absolutely essential to the conclusion we have reached, that the learned trial judge, upon a view of all the facts and circumstances, refused the defendant’s request for a finding that it is impossible for the defendant company to construct an adequate shelter shed at Leetsdale station without occupying a portion of this street. If there is anything that ought to be regarded as conclusively settled by the decisions, it is that the power of a railroad company to occupy a public street or highway must be derived directly or indirectly from legislative grant, and “ must be given in plain words or by necessary implication,” or be taken not to exist: Commonwealth v. Erie & Northeast R. R. Co., 27 Pa. 339; Penna. R. R. Co.’s Appeal, 93 Pa. 150 ; Penna. R. R. Co.’s Appeal, 115 Pa. 514; Jones v. Erie & Wyoming Valley R. R. Co., 169 Pa. 333. See also South Western State Normal School Case, 26 Pa. Superior Ct. 99; s. c., 213 Pa. 244; Commonwealth v. Allegheny Valley Ry. Co., 14 Pa. Superior Ct. 336. In the construction of such grant directly from the commonwealth, or from township or municipal officers under authority derived from the commonwealth, nothing is to be taken by implication against the public, except what necessarily flows from the nature and terms of ’ the grant. “ In either case in the absence of express words, or their equivalent, giving an exclusive right to the street, or to a defined part of it, the grant, whether legislative or municipal, will be construed most strongly against the grantee, and most favorably in aid of the existing public right of passage : ” Jones v. Erie, etc., R. R. Co., 169 Pa. 333. The application of these principles to the case in hand can lead to but one conclusion. The words of the statute are : “ If it shall be necessary in the location of any part of any railroad,” etc. It certainly was not deemed necessary by the company to occupy the land now included within this street in the location of its railroad, as we have shown'; but as a switch or turnout or siding, or the like, is part of a railroad, it might be argued that it was not necessary to exercise its power with reference to every such part of the railroad at one time ; and, therefore, that the condition upon which the township officers are to exercise their discretionary power will not arise until the location of the switch, siding, or like, comes to be made. For this and other reasons the cases cited as to the continuing power to condemn land for such purposes do not furnish much aid, certainly do not control, in the solution of the question before us, which is whether, after the location and construction of the railroad and its passenger station upon other land, and the operation of the railroad in that location for years, the township officers have power to authorize the company to extend its buildings, or to erect other buildings for the same purpose, in the adjoining highway. Even if the words of the section were more favorable than they are to the construction, ably contended, for by the appellant’s counsel, there still would he grave doubt whether the legislature intended to invest them with such extensive power, to be exercised whenever the great convenience of the railroad company would be subserved thereby. It is only by giving to the words of the section a meaning which they neither necessarily nor clearly imply that the conclusion can be reached that the township officers have such power. We conclude that they have not. It follows that the learned judge below was right in holding that the action of the township commissioners in authorizing the occupation of the highway in the manner described was without authority in law.

As the bill was filed before the construction of the building, and before the formal resolution of the commissioners giving their assent upon the terms and conditions therein specified was adopted, it could not be claimed, and is not, that the plaintiffs are estopped by acquiescence or delay from resorting to this remedy. There is no consideration of that hind 'to affect the decision of the casé. But the appellant does very strenuously insist that none of the plaintiffs has sustained such special damage as entitled him to maintain a bill in equity to enjoin this unauthorized use of the highway. It is true the building is on the opposite side of the street from the property of the plaintiff Riley, and in that respect the case resembles North Penna. R. R. Co. v. Inland Traction Co., 205 Pa. 579. But there is' this obvious difference between the two cases. In that case the injury complained of was the laying of a street railway track upon the highway, which did not exclude the public or the plaintiff from the use of that part of the highway. In this case a portion of the highway has been actually excluded from public use and the plaintiff’s use by the building which has been erected' thereon. Moreover, while the injury to the plaintiff upon this account is not of the most serious nature, yet there is evidence in the case that to some extent it interferes with his light, and the court' has found that it interferes with his view. The highway, it is true, is not greatly traveled at this time and the building is upon that part of it which is not generally traveled by the public. Nevertheless it is a part of the highway which every member of the public has a right to travel, and the case is to be considered not merely in the light of the present use of the highway but in the light as well of the effect which such unauthorized obstruction therein will have in the future when the travel becomes greater and the territory more thickly populated. Nothing is to be taken against the plaintiffs certainly upon the ground that they have moved too promptly. If they had not moved promptly, it would probably be urged against them, if, when the injury should become more apparent and serious, they should undertake to have it abated. The three decisions of our Supreme Court cited by the appellant’s counsel in support of the proposition now under consideration are : Gold v. City of Phila., 115 Pa. 184; Black v. Phila. & Reading R. R., 58 Pa. 249, and Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401. These cases are plainly distinguishable and do not rule the case in hand. In the first the question was whether a municipal corporation charged with the duty of keeping the highway in repair is liable to the owner or occupier of property fronting thereon for the loss of business resulting from the neglect of this duty. We need not comment on the distinction between that case and the present. In the second case the general proposition was enunciated that where a railroad track is on a public street owners of property abutting on the street, and in the vicinity, to sustain a bill to enjoin, must establish that it is a public nuisance, and that they have sustained special damage. There is no room for difference of opinion upon that general proposition, but whether the evidence in that case was such as to make it analogous is a matter which we cannot determine from the report. It is evident, however, that the case was decided largely upon the ground that the laying of the railroad track upon the street was not contrary to law but was authorized by the acts cited in the opinion of Mr. Justice Read. The third case is thus distinguished from cases like the present by Mr. Justice Williams in Thomas v. Inter-County Street Ry. Co., 167 Pa. 120: “ In this case a bill was filed to restrain the Union Passenger Railway Co. from running street railway cars on Sunday. The company was lawfully incorporated. Its right on the streets was not denied ; it was alleged, however, that the running of street cars was the pursuit of a wordly employment on the Lord’s day, and therefore a violation of the Sunday law. What was held was that an act that is simply illegal will not ordinarily be restrained except at the instance of some person who can show that he is injured by it. If the object of the plaintiff is simply to enforce a general law, he will be left to the remedy which the law itself provides for its enforcement.” We need make no further comment upon the distinction between this case and the case in hand. The decisions outside of Pennsylvania which are cited seem to carry the doctrine as to balancing the inconveniences further than it is maintained in Pennsylvania where there is no doubt as to the unlawfulness of the act complained of, or as to the plaintiff’s legal right. See Walters v. McElroy, 151 Pa. 549; Bigler v. Penna. Canal. Co., 177 Pa. 28; Groff’s Appeal, 128 Pa. 621; Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 640. An abutting owner who must use the street as a means of access to his property has a special interest therein which gives him standing to invoke the aid of equity to prevent unlawful' obstruction of the street which other members of the general public have not. Moreover, under the facts of this case the principle is applicable, that when an owner of land subdivides it into lots and lays out streets, alleys or courts for the accommodation of the lots, the purchasers of the lots acquire a right of property appurtenant to the lots, in the use of the streets, alleys or courts, without regard to whether any right is by the plotting and conveyances vested in the public. This subject is quite fully discussed by our Brother Porter in Carroll v. Asbury, 28 Pa. Superior Ct. 354. When one, under such circumstances, has bought with reference to the advantage derivable from having a street fifty feet wide in front of his lot, and by reason of the implied contract with the vendor has acquired such right of property appurtenant to his lot as is described in the case cited, it would seem clear that the narrowing of the street immediately in front of his premises to thirty-seven feet, by erecting thereon a permanent structure without authority of law, would be a special injury to him, differing in kind from that sustained by other members of the general public who simply have a right of passage; and this is true whether the dedication to public use had been completed by acceptance on the part of the public authorities at the time of the erection of the nuisance or not. How can it be said that the right to have the aid of a court of equity to prevent the consummation of an act so plainly prejudicial to his rights is affected by the fact that it is a public nuisance as well? If he moves promptly, before the threatened wrong has been done, and no acquiescence, laches, delay in prosecuting his case, or other consideration of that kind can be pleaded against him, it is no answer to his application for preventive relief to say that the injury will not be irreparable in money damages. Upon this point we quote from the opinion of Justice Trunkey in Penna. R. R. Co.’s Appeal, 115 Pa. 514: “ Where railroad companies or individuals exceed their statutory powers in dealing with other people’s property, no question of damage is raised when an injunction is applied for: Commonwealth v. Railroad Co., 24 Pa. 159. True, they have not taken the plaintiffs’ property, and, if the plaintiffs have not been specially injured, they are not entitled to injunction. But if the defendants, without authority from the state, create a' nuisance on the street, one who is specially injured is entitled to relief without proving the amount of damage. In such a case, the defendants are not in the position of a person who carries on a business, lawful in itself, of which a neighbor complains. They are not on their own land. If not empowered to use the street, they have no more right to construct a railroad on it than any other person. A wrongdoer may not set off benefits to prevent the injured party obtaining relief. A man is not to be driven from his home by offensive structures, or compelled to sell it even for more than its value by one who is not invested with power to injure or take it for public purpose.” We cite further the remarks of Chief Justice Mitchell in the recent case of Edwards v. Pittsburg Junction R. R. Co., 215 Pa. 597, at page 602, and again call attention to the case of Thomas v. Inter-County St. Ry. Co., 167 Pa. 120. The general rule that a railroad company occupying a public street without authority by legislative grant in clear words or by unavoidable implication constitutes a public nuisance and may be enjoined at the suit of a private citizen specially injured is not open to question and under the evidence we are of opinion that it would sustain this bill, at least so far as the plaintiff Riley is concerned.

The remaining proposition to be considered is that the court ought to have dismissed the bill for multifariousness. Although, usually, there must be some privity between the complainants in a bill, yet there are many cases analogous to the present where those between whom there was no privity have been allowed to sue together when they have sought to avert an injury which would affect them all in the same manner, although perhaps not in the same degree. The case most frequently cited in this country is Murray v. Hay, 1 Barb. Ch. 59, where Chancellor Walworth — contrary to the rule in the English case of Hudson v. Maddison, 12 Sim. 416 — held, that two or more persons having separate and distinct tenements which are injured, or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance, which is a common injury to the tenements of both, may join in a suit to restrain such nuisance. In Story’s Equity Pleading, sec. 286 (b) the learned author says that the case of Hudson v. Maddison, 12 Sim. 416, seems not to be in entire harmony with some of the other English cases cited, and the editor of the tenth edition of that valuable work says that the doctrine of Murray v. Hay has been quite generally accepted in America. Amongst the analogous cases that may be referred to in support of the doctrine of that case are Cadigan v. Brown, 120 Mass. 493 ; Nash v. New England Mut. Life Ins. Co., 127 Mass. 91; Pettibone v. Hamilton, 40 Wis. 402; Scofield v. Lansing, 17 Mich. 437; Taylor v. St. Ry. Co., 80 Mich. 77 (45 N. W. Repr. 335); Rowbotham v. Jones, 47 N. J. Eq. 337 (20 Atl. Repr. 731). See also Gould on Waters, 400, and Rafferty v. Central Traction Co., 147 Pa. 579. It is true the plaintiffs .have not a common interest in the sense of owning land by a common title; but convenience justified their joining in a single suit to prevent the injury complained of and no inconvenience or injustice that we can conceive of could result to the defendant. Where a bill is not demurrable for multifariousness upon the ground now being considered, a failure of evidence as to the alleged special injury to some of the plaintiffs, but not as to all, is not ground for dismissing the bill after a full hearing upon the merits.

There are other questions in the case which need not be considered in view of the conclusions we have reached upon these questions.

The decree is affirmed, the appellant to pay the costs.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Smith, Appellant, v. Metzger.
    February 25, 1907 :

      Will — Devise—Description of land — Boundaries.
    Testator owned land on which were two dwelling houses facing a street. The land extended within parallel lines back to another street. In the rear of the two houses on the portion of the land abutting on the back street testator built a bakehouse, which he operated until he went out of business a year prior to the execution of his will. About ten years prior to the date of his will he erected a fence separating the land appurtenant to the bakery from that adjoining the houses. In this fence were openings used as access to the bakery. At the time of his death testator occupied one of the houses, and rented the other to a nephew. The bakery was rented to a firm which had succeeded testator in business. By his will testator devised (his) “my dwelling house and lot attached thereto ” to his sister. By a codicil he devised to the same sister the dwelling house occupied by his nephew and the land attached thereto. He gave, devised and bequeathed the entire remainder of his estate to others. Held, that the residuary devisees were entitled to the land occupied by the bakery.
    Argued Nov. 13, 1906.
    Appeal, No. 235, Oct. T., 1905, by plaintiffs, from decree of O. C. Lancaster Co., Sept. T., 1904, No. 64, dismissing exceptions to adjudication in case of Levi Smith et al. v. Mary E. Metzger et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      B. E. Davis, for appellant.
    — The bakery property belonged to the residuary estate : Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Lipman’s Appeal, 30 Pa. 180; France’s Estate, 75 Pa. 220; Smith’s App., 23 Pa. 9.

      John E. Snyder, with him Oliver T. Rogers, for appellees.
   Opinion by

Porter, J.,

Charles W. Metzger executed his last will on April 14, 1897, and a codicil thereto on May 1, 1897, and died on May 2, 1897. The part of the fund in the hands of the executor, the accountant, involved in this appeal is the rent collected from a certain bake-house property, fronting on south Christian street, and the lot of land thereto appurtenant. A dispute having arisen as to who was entitled to these rents, under the provisions of the will, the parties interested permitted the executor to collect the rents, and none of the assignments of error raised the question of the propriety of such action. The parties agreed that the rents should be collected by the executor, included in his account, and be distributed by the court to the parties to whom the bake-house property passed under the will. The decedent devised all his property to his widow during her life, the widow died on September 28, 1902, the rent included in this account accrued subsequently to her death and is, therefore, to be distributed to the parties in whom the estate in remainder vested. '

The clauses of the will which are material to the determination of the question here presented are as follows: “ After the death of my wife .... I give, devise, and bequeath my home, being my dwelling-house and lot of land attached thereto, No. 133 South Queen street, Lancaster, Pa., to my sister Mary E. Metzger, together with all the contents thereof, during her natural life, as a home for herself and my niece Clara Rogers.” “ The residue and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to my brother Gotlieb F. Metzger, my sister, Mary E. Metzger, my sister Caroline Rogers,- my sister Louisa A. Smith, and my niece Clara Rogers, in equal shares and parts.” The foregoing clauses and the clause in the codicil viz.: “ I give, devise and bequeath to my sister, Mary E. Metzger, and my niece Clara Rogers, and their heirs in fee the dwelling-house and lot of land, No. 135 South Queen Street, and now occupied by my nephew,. John Metzger, and the land attached thereto: ” are the only parts of the will which touch the question here involved. That the testator died intestate as to no part of his estate is manifest. The residuary clause, above quoted, carried all the property that was not specifically devised. There was no uncertainty or ambiguity apparent on the face of the instrument which cpuld justify the introduction of parol testimony to explain it. If ■when this will came to be applied to the property of the decedent and the persons to whom he devised it any ambiguity was found to exist, such ambiguity was a latent one, arising from some extrinsic fact or circumstance, which rendered the application of the will doubtful.

There is no doubt as to the persons who were to take under this will, the identity of the devisees is certain, no other person has appeared who would come within the description of any one of them contained in the will. The condition of the testator’s property and the uses to which it was devoted, at and for a long time prior to the execution of his will and down to the day of his death, was equally free from doubt. The testator lived with his family in the house which in his will he describes as “ my home, being my dwelling-house and lot of land attached thereto, No. 133 South Queen Street;” he had for years so used that house and lot of land attached thereto as a place of residence. The lot which was and had been used as appurtenant to this house as a place of residence was twenty-two feet in front on South Queen street and extended back eastwardly to a fence which separated it from .the bakery property. The fence had been placed there by the testator at the time he erected the dwelling-house, No. 133 South Queen street, on the front of the lot, at least ten years prior to the execution of his will and he maintained that fence in the same position down to the day when his will took effect. The line between the property which the testator thus set apart and used for the purposes of his residence and that, in the rear, which he used for the purposes of his business as a baker, had thus been by the testator himself clearly defined. The land directly east of the lot which the testator had thus set apart for use as a home was used as a yard in connection with the business of the bakery, for the purpose of driving in teams to take away the product of the bakery. It afforded the only means of access to the bakery as constructed, for the building had no door opening on Christian street, the only outlet being through the yard. There may have been a gate in the fence ■ between the two lots, but if there was it did not change the character of the uses to which- the property on either side of the fence was devoted. The plaintiff had for many years been the proprietor of and operated the bakery, which was a manufactory of crackers, and not a mere store for the sale of the product. He may have had a gate in the fence so as to afford him a convenient passageway from his place of business to his home, but if he had, the effect would not be to make the Manufactory an appurtenance of the dwelling-house. One controlling fact in the situation of these properties remains to be noticed and it removes the question whether the lot No. 138 is to be extended through to Christian street from the realm of reasonable doubt. The testator had retired from business in 1896, over a year prior to the execution of his will, and had rented the bakery building and the lot thereto appurtenant to the firm of Metzger Bros., composed of his nephews, at the annual rental of $140, payable quarterly, and the new firm had gone into possession of the property, operated the bakery, used the yard and paid the rent to Charles W. Metzger, the decedent. Charles W. Metzger, the testator, was at the time of the execution of his will and at the time that will took effect occupying as his home the dwelling-house, No. 133 South Queen street, and the lot of land attached thereto, extending back to the fence which separated it from the bakery property, which latter property was in the possession of his tenants, and was by them used for business purposes.

The condition of the property of the testator rendered equally certain the application of the devise of the “ dwelling-house and lot of land, No. 135 South Queen street and now occupied by my nephew John Metzger, and the land attached thereto.” John Metzger, the nephew, had for ten years prior to the execution of the will occupied the dwelling-house, No. 185 South Queen street, as a tenant under the testator, and paid a rental of $15.00 per month, and this tenancy continued down to and after the death of the testator. The house fronted on South Queen street and the land thereto appurtenant, as used by John Metzger during the entire period of his occupancy, had a frontage of twenty-five feet on South Queen street and extended back to the bakery property, from which it was separated by the side of a frame shed which stood on the bakery property, and a fence extended from the corner of the shed across the other part of the rear of the lot, to the line of the lot, upon the front of which stood the building No. 133 South Queen street. The line of the lot thus set apart as appurtenant to the dwelling-house had been thus marked by the testator, and the shed and fence had been maintained in the same position from a time long before John Metzger became his tenant there, and that shed and fence had been maintained by him in the same position down to the time when he executed his will and until the day of his death. The testator had himself occupied the residence No. 135 South Queen street prior to the occupancy by John Metzger, and had placed a gate in the fence between the lot used in connection with the residence and the bakery property, which thus afforded him a convenient passageway from his place of residence to his place of business, but the line between the property which was set apart for the purposes of the residence and that which was devoted to the business was even at that time clearly defined. When the testator removed to the house No. 133 South Queen street and rented the house No. 135 South Queen street to John Metzger, the latter only went into possession of the lot which had been set apart as appurtenant to the house. The side of the frame shed and the fence which continued on the same line, although that fence had a gate in it, marked the lines between the property which John Metzger occupied as a residence and the bakery property of which the testator was the owner and of which he remained in possession. The testator remained in possession of the bakery property until a year before his death, when he leased it to the firm of Metzger Bros., composed of John Metzger, Harry Metzger and Charles Metzger, nephews of testator. The bakery property remained in the possession of this firm, and as a firm they paid rent for it, and the dwelling-house No. 135 South Queen street continued in the individual possession of John Metzger, who paid rent for the same, down until the date of the execution of the will and until the day when it went into effect. It thus appears that for over ten years prior to the death of the testator the possession of the dwelling-house, No. 135 South Queen street, and the lot thereto appurtenant and that of the bakery property had never been in the same persons. The building upon the bakery property was upon that part of the ground which had been set apart for the purposes of this building directly east of No. 135 South Queen street and occupied all the ground directly east of the lot upon which the dwelling-house was situated, in other words, if the lot upon which No. 185 South Queen street is built were extended through to South Christian street the bakery building would occupy .the entire South Christian street front of that lot.

The application of the will of the testator to his property as it existed at the time of the execution of his will and the time when that will went into effect disclosed no latent ambiguity,, which warranted the introduction of parol testimony to give effect to the will. The description of each property, as contained in the will, was clear and accurate; as to each devise there existed a subject which satisfied the terms of the will, and to which they were perfectly applicable; in such a case there is no latent ambiguity: Wusthoff v. Dracourt, 3 Watts, 240; Best v. Hammond, 55 Pa. 409; Root’s Estate, 187 Pa. 118; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Myers v. Myers, 16 Pa. Superior Ct. 511. The testimony to the effect that John Metzger and his family, occupying the house No. 135 South Queen street, had been accustomed to pass through the gate hi the fence and go to the bakery, or across the lot appurtenant to the bakery, to the eastward, across the lot in the rear of No. 133 South Queen street, and through the gate onto Christian street, was wholly insufficient to establish in John Metzger possession of any part of the bakery property. The ownership and possession of the entire bakery property was in other parties. The utmost right that could be acquired by a long continued use of the yard as a passageway to Christian street, would be an easement for. a right of way appurtenant to the lot fronting on South Queen street. But the evidence in the present case was wholly insufficient even for such a purpose. The testator owned the entire property and the mere fact that he permitted his tenants to walk through the yard of the bakery did not change the character of the uses to which he had for his own purposes devoted it.

The devise of “ my dwelling-house and lot of land attached thereto, No. 133 South Queen street,” carried with it only the land which the testator himself had used as an appurtenance of his dwelling, and it did not include the bakery property, or any part of it which he had for many years himself used for other purposes, and which at the date of the execution of his will was in the possession of other parties, as tenants of the testator. And the same is true of the devise of the dwelling-house, No. 135 South Queen street, and the land attached thereto. The learned judge of the court below fell into the error of giving effect to testimony which was intended to make a new will for the testator. In Willard’s Estate, 68 Pa. 327, Mr. Justice Shakswood said: “ In regard to the admissibility of the parol evidence of Henry E. Snyder, the scrivener who drew the will of William Waldo Willard, as to his understanding of what the testator intended; it would be in the teeth0 of every precedent and a virtual repeal of the act of assembly which requires all wills to be in writing.” The learned judge of the court below gave undue weight to the fact that when, many years ago, the testator bought the two lots which comprised this entire property, the land extended clear through from South Queen street to South Christian Street. The South Christian street end of the lots was then wholly unimproved. Charles W. Metzger was the absolute owner of the property and he had a perfect right to improve it and divide it as he pleased. He built the bakery upon the Christian street end of the lots and set apart a portion of the Christian street end of both lots as appurtenant to the bakery, and for years so used the property. He had a perfect right to divide the property in his will, and by the terms of his will he clearly did so. It did not even appear from the will that the decedent had. bought lots extending clear through from South Queen street to Christian street; the deeds to which the learned judge of the court below refers were extrinsic evidence. And they threw no doubt upon the intention of the testator as to the manner in which the property was to be divided.

The bakery property passed, under the will of Challes W. Metzger, under the devise of the residue of his estate, and to the parties who take under that clause of his will these rents should have been awarded.

The decree of the court below is reversed, and it is ordered that the costs of this appeal be paid out of tbe amount received as rents and included in the account, and the record is remitted to the court below with direction to make distribution in accordance with the foregoing opinion.


author: Head, J.,

text:
    Suffolk Peanut Company v. Luden, Appellant.

      Contract — Sales—Acceptance of order.

    Where a dealer issues to his salesmen blank orders which have printed on their face an express stipulation that all sales are to be subject to acceptance by the dealer, and a purchaser gives an order to a salesman on such a blank, as he had been hi the habit of doing in previous transactions, and such order is rejected by the dealer as soon as it was received, the purchaser cannot allege as a defense that he had signed the order as an absolute contract of purchase and sale, relying on the statement of the agent that the latter had authority to make an absolute sale and did not always use the printed forms in sending in orders, which were nevertheless filled.
    Argued Nov. 14, 1906.
    Appeal, No. 41, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., April T., 1904, No. 88, on verdict for plaintiff in case of The Suffolk Peanut Company v. William H. Luden.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Ermentrout, P. J.
    The facts are stated in the opinion of the Superior Court.
    The defendant presented, inter alia, the following points:
    1. Under the law the principal is responsible for the negligence of his agent in the course of his employment. The neglect of the agent is the neglect of the principal. If the jury find that through the negligence of Thomas, the agent for the Suffolk Peanut Company, the plaintiff, in sending in an order taken from the defendant, the defendant lost an opportunity of buying in the market at the same rate, and was compelled by reason of such negligence to buy at a higher rate, the plaintiff would be responsible to the defendant for the difference in the price caused thereby. Answer: Declined. [1]
    2. The principal is bound by the acts of his agent within the scope of the authority which he is held out to the world to possess, even notwithstanding the agent acted contrary to instructions. If the jury find that the plaintiff’s agent, Thomas, was accustomed to make contracts with the defendant which contracts were recognized by the house and the goods delivered in pursuance thereof, it makes no difference whether the agent of the plaintiff acted beyond his authority or not, as the plaintiff would be bound by any contract which the agent made with the defendant in pursuance of said custom or usage. Answer: Declined. [2]
    February 25, 1907:
    Plaintiff presented these points :
    3. The order No. 442 for 600 bags of peanuts was not binding on the plaintiff because it appears from the evidence that it was never accepted and acceded to by the plaintiff, or by any one having authority to bind the plaintiff to its acceptance. The defendant is therefore not entitled to claim any damages from the plaintiff for not filling said order. Answer: Affirmed. [5]
    4. Under all the evidence in the case your verdict must be for the plaintiff for the sum of $475.44, with interest from March 4, 1904, to date, making a total of $507.81. Answer : Affirmed. [6]
    Verdict and judgment for plaintiff for $507.81.’ Defendant appealed.

      Errors assigned were (1, 2, 5, 6) above instructions, quoting them.

      W. K. Stevens, of Stevens Stevens, for appellant,
    cited: Pitcher v. Lowe, 95 Ga. 423 (22 S. E. Repr. 678); Hall v. Kimbark, 11 Fed. Cases, 234; Keough v. Leslie, 92 Pa. 424; McNeile v. Cridland, 168 Pa. 16.

      E. Carroll Schaeffer, with him C. H. Schaeffer, for appellee,
    cited: Slaymaker v. Irwin, 4 Whart. 369; Donaldson v. Kerr, 6 Pa. 486.
   Opinion by

Head, J.,

On December 14, 1903, the defendant, a merchant in the city of Reading, gave to the salesman of the plaintiff company, one Thomas, two orders for the purchase of peanuts. Both of these orders were reduced to writing. by the salesman, in the presence of the defendant, on blanks furnished by the plaintiff for that purpose. Each order was prepared in triplicate, one copy of each being then and there delivered to the defendant; one to be retained by the salesman, and the third to be forwarded to his principal, the plaintiff. Each blank on which these orders were prepared contained, inter alia, the following plainly printed stipulations : “ There is no condition or understanding not mentioned in this order. All sales subject to acceptance by the Suffolk Peanut Co., Suffolk, Va.”' These orders were not promptly forwarded by the salesman and did not reach the office of the plaintiff company until December 28. One order, No. 441, was for 100 bags, to wit: “ 25 No. 1 Fancy Hand-Picked, at 4-1/2” and “ 75 bags No. 1 Virginia Shelled, at 4-1 /2,” to be shipped “ at once.” The other order, No. 442, was for “ 500 bags No. 1 Virginia Shelled, at 4-1/2,” to be shipped “Jan 14th.” Meantime, on December 12, the day following the giving of the orders, the defendant wrote to the plaintiff: “ The order for prompt shipment, .as given to your Mr. Thomas, I wish you to reply at once stating how soon the goods will be shipped, etc.” To this the plaintiff immediately replied under date of December 17 : “ Your letter of the 16th inst. has been received and we beg to say that Mr. Thomas, has not yet sent the order in, and as soon as we receive it we will be prepared to give you reply to the same, etc.”

As soon as the orders reached the plaintiff company on December 23, they wired defendant as follows : “Thomas report just received cannot, accept 500 bag lot Virginia shelled Writing.” On the same day the plaintiff wrote a letter from which the following extract is taken : “ We have just this morning received the report of Mr. Thomas and beg to say that we have wired to you that we could not accept the order for the 500 bag lot of No. 1 Va. shelled peanuts. We can and will accept the order for the 75 bags but this is the best we can do. . . . Of course you understand from the sales sheet which you have that all sales are subject to our acceptance, etc.”

The plaintiff having delivered the 100 bags, the order for which had been accepted as above indicated, and the defendant having refused to pay therefor, this action was brought to recover the purchase price thereof named in the accepted order. The defendant, not denying his liability to account for the 100 bags actually received, denied the right of the plaintiff to recover on the ground that the agent of the plaintiff had made an absolute and binding contract for the delivery of the entire 600 bags at the times and prices named in the two orders. That this contract, notwithstanding the express condition of the written orders to the contrary, was not to be subject to acceptance by the plaintiff. That the refusal of the plaintiff to accept the order for 500 bags and to deliver them as ordered'requiredthe defendant to go into a rising market and buy them at an advanced price with a resultant loss to him of more than the amount of the plaintiff’s claim. The authority of the agent to make any such contract being expressly denied, the law imposed upon the defendant the burden of establishing it by sufficient evidence competent for that purpose. In discharge of this burden the defendant could produce no evidence except the assertion, on the witness stand, of the agent that he had the authority to make an absolute sale and did not always use the printed forms in sending in orders, which were nevertheless filled. Certainly the naked assertion that he had such authority would be insufficient to establish the fact under the circumstances of this case. He did not pretend to show that such authority had ever been expressly conferred on him; that any claim on his part that he possessed it ever was made to his principal or brought to the knowledge of the latter; and especially that any facts, if there were any, to warrant the assumption that the apparent scope of his authority was wide enough to override the limitation expressed in the written and printed orders used, were communicated to the defendant and became the inducement which led to the giving of the orders. On the contrary, he was forced to admit, on cross-examination, that these triplicate orders were the real basis of the transaction. “Q. These are the three papers that represent this transaction ? A. I suppose so. . . . Q. Then these are the three papers that were used in this transaction, were they not? A. You have two there and this one; yes, sir. Q. These were all that were used in this transaction? A. Yes, sir.”

The defendant admitted that he had frequently dealt with the plaintiff during a period of years through the same agent, but that in every instance the order was reduced to writing on blank forms, just as in this case, and that they were always prepared in triplicate, he retaining one. His own letter of December 15, to the plaintiff spoke of an “ order,” he had given the day before, not of a purchase he had made. The company’s prompt reply, under date of December 17, was a distinct and plain notice that they recognized no contract and would recognize none until the receipt of the orders gave them the chance to exercise their right to accept or reject them. The defendant was then at liberty to cancel if he chose and it would seem but natural and fair to conclude that, if he then relied on the position he now assumes, he would have acted and notified the plaintiff of his action. Certainly he would not have permitted to go unchallenged the emphatic statement in the plaintiff’s letter of December. 23, that every sale was subject to their acceptance, the very language of the order. Yet the record fails to disclose any letter or telegram from the defendant advising the plaintiff of his claim, viz., that he had made an absolute contract with their agent for 600 bags and unless the goods were delivered he would go into the market and charge any difference in price to them.

Not until February 9, did he disclose the view he now takes of the transaction.

Another witness, also a merchant in Reading, was called by the defendant but he, also, testified that in his dealings with the plaintiff, through the same salesman, Thomas, the same printed orders were always used and the business conducted just as in this case.

Taking the evidence as a whole, then, and we think we have briefly noticed its essential features, we must conclude there was, at most, nothing more than a scintilla of evidence that the plaintiff had ever entered into the contract as claimed by the defendant. There is no evidence that any facts were communicated to or known by the defendant, at the time he gave the two orders, to warrant him in assuming that the plaintiff would waive the right of acceptance so plainly provided for in the orders and with which he, by his previous dealings, was entirely familiar. In the one case the acceptance of the order made a contract mutually binding and enforceable. In the other the refusal to accept left the ex parte order without mutuality and lacking in the element essential to every contract.

We are unable to see, in the case before us, any room for the application of the principle declared in Keough v. Leslie, 92 Pa. 424, and kindred cases, because, as to the contract, which the plaintiff now seeks to enforce, there is no dispute, no issue as to the real or apparent scope of the agent’s authority. The conflict only arises when the defendant attempts to set up a wholly different contract, the existence of which the plaintiff denies.

The learned trial court was, therefore, right in holding that the attack made by the defendant on the written orders had entirely failed; that the plaintiff’s right to recover had not been successfully assailed, and that the law must leave the defendant in the position in which he had voluntarily placed himself.

The assignments of error are overruled and the judgment is affirmed.


author: Beavek, J.,

text:
    Reinard’s Estate.

      Husband, and wife — Gift to husband — Evidence—Findings of fact.

    A finding by the court below that a wife of somewhat feeble mind did not give to her avaricious husband a sum of money which she received from her mother’s estate, will not be reversed, where there is competent evidence to sustain the finding and there is no manifest error.
    Argued Nov. 14, 1906.
    Appeal, No. 121, Oct. T., 1906, by Mahlon Reinard, Administrator of Harriet Reinard, deceased from decree of O. C. Berks Co., Dec. T., 1905, No. 30, dismissing exceptions to adjudication in Estate of Harriet Reinard, deceased.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beayer, JJ.
    Affirmed.
    Exceptions to adjudication.
    Bland, P. J., filed the following opinion :
    As the judicial determination of each case depends upon its particular facts, it is essential, in considering the exceptions filed, to state the material facts of the case.
    They are:
    1. That the accountant, Mahlon Reinard, and the decedent, were married in 1867; and that they lived in wedlock until her death, November 12, 1896, a period of almost thirty years.
    2. That during that period, the decedent received from the estates of her father and mother, the sum of $2,243.60.

      3. That'all the money so received by the decedent passed directly or indirectly through her to the accountant, during her lifetime; and, at her death, was in his possession; and that at her death, he claimed it as his own, by gift from her.
    4. That notwithstanding the fact that he then claimed the $2,243.60, as a gift from her, he refused to bear the expenses of her burial and medical attendance, and the cost of a .tombstone for her grave.
    5. That on January 4, 1897, he obtained letters of administration on her estate, for the purpose of collecting from his daughter, Annie Missimer, the funeral expenses and the physician’s bill; and that he collected from her for those purposes, and for refreshments furnished at the funeral of the decedent, and one-half the cost of a tombstone, the sum of $121.45.
    6. That the account here was filed by him October 31,1905, nine years after decedent’s death; in which he charged himself with $400 “ reserving to the accountant, however, the right of any defense he may have against the payment of said amount, by reason of the statute of limitations.”
    7. I have also found, on the testimony of five witnesses who knew the decedent many years, corroborated by the fact that the decedent was of admittedly unsound mind several years before her death, and by the fact that her father, Henry Zerr, gave her a restricted interest in her share of his estate, while he gave his five other children their shares absolutely, that the decedent was always somewhat weak in mind.
    These are the main facts. It is a case which, in a sense, involves the relations and mutual rights and obligations of husband and wife. In a normal case of the marriage relation, it is. safe to assume the existence of that mutual love and affection which grows as the years go by; and of an overwhelming sense of pain and loss, when the union, hallowed by innumerable touching memories, is broken, by death. How a normal man can look into the face of his dead wife, with whom he has lived for thirty years, and who, could her cold lips speak, could say to him, “I gave you all,” without a heart melted in tenderness and a feeling of sacred obligation to lay her lovingly and tenderly in the earth, is inconceivable. General rules of law are based on normal facts; and those which declare the rights of a husband with respect to a wife and her acts, are grounded on the supposition that his feelings and conduct in his relations with her were those of the ordinary man. The sordid, grasping man; he whose overmastering selfishness leaves no room in his heart for affection or justice to his wife, is not the type of man whom the rules of law favor. He is the kind of mar whom the law suspects and whose acts it discredits; and who'se calculating selfishness the law condemned in Watson v. Mercer, 6 S. & R. 49; Weeks v. Haas, 3 W. & S. 520; and Darlington’s Appeal, 86 Pa. 512.
    I take the conduct of Mahlon Reinard, after his wife’s death, as typical of his conduct towards her and her estate, during her lifetime; and conclude that, as he was controlled' by pure selfishness at the time when he should have been under the influence of a sense of justice to her, he certainly acted upon the same sordid motive in his relations with her, while she lived. If I am right in this inference, and if, as I have found, she was infirm in mind, and an easy subject of undue influence, the law declares the alleged gift of the principal of her estate, void, because such alleged gift is presumed to have been the effect of his dominating influence. He certainly had the motive to dominate her. There are a number of circumstances which confirm the opinions of the witnesses who testified that she was weak in mind. Although she attended school, she could not write her name ; she spoke with difficulty; her talk was peculiar; for some years before her death she was of unsound mind; and for some reason her father gave her but a limited interest in her share of his estate, while he gave the shares of his remaining five children to them absolutely.
    I think this case clearly lies within the sphere of operation of the principle declared and followed in Darlington’s Appeal, 86 Pa. 512. In that case, at p. 519, Mr. Justice Tbunkey, said : “ On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client; and on the other hand, it is not necessarily void, ipso facto. But the burden of establishing its perfect fairness, adequacy and equity is thrown upon the attorney. If no such proof is established, courts of equity treat the case as one of constructive fraud. In dealings between principal and agent, or guardian and ward, or trustee and cestui que trust, the same principles prevail, with a larger and more comprehensive efficiency; and the burden of proof is upon the agent, the guardian, or a trustee who claims a benefit arising from the transaction to show the utmost good faith on his part, that he took no advantage of his influence or knowledge, and that he brought everything to the knowledge of the other party, which he himself knew. The foregoing principles are too familiar for citation of text-hooks or report. It is equally unnecessary to show by authority that the most dominant influence of all relations is that of the husband over the wife.”
    In this case the accountant, for. nine years, and until he was compelled by the court to file an account as administrator, retained and claimed as his own the whole estate of the decedent. He then filed an account charging himself with the $400 which had been “ advanced ” to him, on account of the share of the decedent in her mother’s estate, but failed to account for the $407.64, on the alleged ground that she gave it to him. The only evidence of the alleged gift is that of the executors of the mother’s estate; one of whom testified that when the decedent received the $407.64, she passed it to the accountant, saying, “ That is yours; ” and the other of whom testified that she passed it to him saying “You just take it.” As between husband and wife, the expression “ That is yours,” is of little value to prove a gift, for it may mean, “ yours to use,” “ yours to keep for me,” or any similar purpose. ■
    But apart from its equivocal meaning, the testimony that she made that expression does not agree with that of the other executor, who testified that she, when she passed the money to him, said, “ Just take it.” When the ambiguity of the expression, “ That is yours,” is considered in connection with the conflicting testimony of the other executor, it is utterly inadequate to overcome the strong presumption of law arising from the confidential relation, and of fact, arising from the avaricious spirit which plainly controlled him in his dealings with her estate.
    He has been allowed to retain the interest money received from her, amounting to $1,456.60, and the interest on the $400, advanced to him by her mother, from the time he received it until his wife’s death; and as a distributee entitled to share equally with his daughter, he received in this proceeding the further sum of $586.04. These sums aggregate more than $2,400. In addition to this, his compensation, which was excepted to, was allowed to stand, notwithstanding his obdurate persistence in claiming and keeping the whole estate for nine years after his wife’s death.
    February 25, 1907:
    It is my opinion that the accountant has failed to establish his claim to the $407.64, as donee of the decedent; and that there is no error, in the distribution excepted to. The exceptions are, therefore, overruled.

      Error assigned was the decree of the court.

      H. P. Keiser, for appellant.

      Stephen M. Meredith, for appellee.
   Opinion by

Beavek, J.,

The adjudicating judge in the court below surcharged the appellant, as administrator of his wife’s estate, with certain money received by him from his wife in the settlement of her mother’s estate. The amount due her in said settlement was $807.50. From this was deducted a note of her husband due the estate, amounting to $400. The balance was paid to her in cash and handed to her husband in the presence of the executors.

The administrator, whilst charging himself with the amount of the note which was deducted, claims that the cash was a gift from his wife to him. The adjudicating judge heard the testimony in the court below and found as a fact that the wife did not, by handing over the money to her husband, under the circumstances, with a remark as to which the two executors in their testimony differ, intend, and did not as a fact make, a gift thereof to him.

The original adjudication of the court below, with its distinct findings of fact, is full and exhaustive. In an opinion, disposing of the exceptions thereto, he also reviews the entire case. The facts are fully stated therein, the authorities cited and commented upon, and we are all of the opinion that they fully justify his conclusion.

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