author: Morrison, J.,

text:
    Botsford v. Lull, Appellant.

      Assignment — Equitable assignment — Contract—Performance.
    Where a contractor directs in writing the owner to pay to a bank a sum named, and charge it to the contractor’s account on the contract, the writing is, for the purpose of this case, assumed to be an equitable assignment, but not decided that it is such; and if a suit is subsequently brought on the paper in the name of the contractor to the use of the bank, no recovery can be had by the plaintiff unless it is shown that the contractor fully complied with the contract.
    Argued Nov. 20, 1905.
    Appeal, No. 20, Oct. T., 1905, by defendant, from judgment of O. P. Bradford Co., Dec. T., 1902, No. 214, on verdict for plaintiff in case of Botsford & Kunes to use of Athens National Bank v. Julia A. Lull.
    Before Rice, P. J., Orlady, Porter, Morrison and Henderson, J J.
    Reversed.
    Assumpsit on an assignment of part of a claim. Before Fanning, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $484.20. Defendant appealed.

      Error assigned among others was (15) in entering judgment on the verdict.

      March 12, 1906:

      D. C. De Witt, for appellant,
    cited: Saylor v. Bushong, 100 Pa. 23; Maginn v. Dollar Savings Bank, 131 Pa. 362; Hazleton Co. v. Improvement Co., 143 Pa. 573; Reilly v. Daly, 159 Pa. 605.

      L. T. Hoyt, for appellee,
    cited: Steuart v. Line, 11 Pa. Superior Ct. 345; Erie City Iron Works v. Barber et al., 118 Pa. 6; Todd v. Insurance Co., 9 Pa. Superior Ct. 381; Gotshall v. Langdon & Co., 16 Pa. Superior Ct. 158.
   Opinion by

Morrison, J.,

This is an appeal by the defendant from the judgment of the court below granted against her as a matter of law, and the cause of action upon which the plaintiff claimed was as follows : “ September 24, 1902. Mrs. Julia A. Lull, Sayre Pa. On or before October 1, 1902, pay to the Athens National Bank, four hundred and fifty dollars ($450.00) and charge to our account on contract for brick block on Desmond street, Sayre, Pa. Botsford and Kunes.” The defendant never accepted this order nor agreed to pay it, but she received notice of it on September 26, 1902, by the cashier of the bank sending her the original order.

The suit was first brought in the name of the Athens National Bank v. Julia A. Lull, and a declaration was filed claiming upon said order, upon the theory that the defendant was indebted to Botsford and Kunes on a contract for the erection and construction by them for her of a certain brick building, and that the bank made inquiries of the defendant, through her agent, if she would pay an order of $450, if drawn upon her by the said Botsford and Kunes. The declaration averred the promise of said defendant, through her agent, to pay said order if so drawn. Here it may be well to state that the bank gave nothing for said order, except an agreement to extend payment upon a note made by Botsford and Kunes and the payment thereof guaranteed by G. L. Van Scoten, which the bank then held and which was due. In consideration of said order the bank extended payment of said note for ten days from the date of the order.

When the counsel for the bank learned, during the trial, that he could not sustain his cause of action attempted to be set forth in his declaration, he moved to amend the form of action and the record so that it would read Botsford and Kunes, to the use of Athens National Bank v. Julia A. Lull.

The court allowed this amendment, against the objection of the defendant, and granted her an exception, and this action of the court gives rise to the first and second assignments of error.

As the record then stood there was no declaration in the name of the legal plaintiffs to the use of the bank; the contract out of which the legal plaintiff’s claim arose was not declared upon; the substance of it was not set forth in the declaration and there was no copy thereof attached to the declaration nor filed therewith. In making this amendment the use plaintiff at once assumed the burden of showing that Botsford and Kunes had so complied with their written contract with the defendant, dated June 19, 1902, that they could then sue and recover money from the’ defendant. The only reference contained in the declaration in regard to this contract was the following: “ The defendant had contracted with Botsford and Kunes for the erection and construction by them for her of a certain brick building in the borough of Sayre, .... and defendant replied to plaintiff that she was indebted to said Bots-ford and Kunes upon said contract in a sum more than $450, and that if plaintiff presented to her an order for said amount, signed by Botsford and Kunes, that she would accept the same and pay to the said plaintiff the sum of $450.” But this averment was not sustained by the evidence and the court so held. We, therefore, have the anomoly of the plaintiff attempting to show that Botsford and Kunes had complied with their written contract with the defendant, without declaring on it, so that they had a right to maintain an action against her when this suit was brought, for the sum of $450, because on no possible theory could the plaintiff recover, except that the writing of September 24, 1902, was an equitable assignment of $450 then due Botsford and Kunes or to become due thereafter on said contract. It was not declared upon, but it was put in evidence by the plaintiff, and we have a right to consider its'contents.

We next come to the question of whether the paper of September 24, 1902, operated as an equitable assignment to the bank. Counsel for the defendant contends that this paper was invalid because it was not accepted by the defendant, and he cites: Bank v. Shoemaker, 117 Pa. 94; Saylor v. Bushong, 100 Pa. 23 and Maginn v. Dollar Savings Bank, 131 Pa. 362; but these are cases relating to checks or bills of exchange and they do not refer to equitable assignments: Beaumont Bros. v. Lane, 3 Pa. Superior Ct. 73, is an authority tending to establish the doctrine that the paper of September 24, 1902, was an equitable assignment to the bank of $450 of the money due or to become due under the contract in question. The contract was entire for the construction of a brick building, the contractors being entitled, from time to time, to payments upon furnishing evidence as to their progress with the work. The consideration money was to be paid to the' contractors by the defendant. We are not convinced that it has been conclusively settled in this state that the legal plaintiffs can split up the consideration under such a contract, and assign portions of it to different persons so that they can sue and collect in the name of the legal plaintiffs to their use. But the view we take of this case renders it unnecessary to conclusively determine this question. We can assume that the assignment was good and that it clothed the assignee with the right to maintain this suit, if there was a debt due the drawers, or a fund belonging to them in the hands of the defendant, which at the time the drawers had a right to demand payment of. In such case the burden rested on the plaintiff to show that the drawers had so complied with their^ contract, when the suit was begun, that the money was due. The evidence did not warrant submitting this question to the jury, much less giving a binding instruction in favor of the plaintiff.

Some of the cases on equitable assignments are the following: Geist’s Appeal, 104 Pa. 351; Jermyn v. Moffit, 75 Pa. 399; Appeal of Philadelphia, 86 Pa. 179; Bispham’s Eq., 7 ed., see. 166; Caldwell v. Hartupee, 70 Pa. 74; Nesmith v. Drum, 8 W. & S. 9; Ruple v. Bindley, 91 Pa. 296; Hazleton Mercantile Co. v. Union Imp. Co., 143 Pa. 573.

For the purposes of this case we will follow the Beaumont case and determine this one upon the theory of an equitable assignment of a portion of the legal plaintiff’s claim to the bank. It must be conceded, however, that the cases make a marked distinction between assigning a whole contract or claim and cutting it up and assigning portions thereof to different parties. In the present case, the defendant, on September 29, 1902, after notice of the alleged assignment, paid to Botsford and Kunes §450 on the contract. A careful reading of the testimony, the charge of the court and the arguments of counsel, convince us that the learned court gave a binding instruction against the defendant, not because the plaintiffs showed that they had complied with their contract, but because by certain inducements and representations they persuaded the defendant to pay them (the legal plaintiffs) on September 29, 1902, §450, which the use plaintiff contends ought to have been paid to it under the assignment of September 24,1902.

Under the doctrine of Beaumont Bros. v. Lane, 3 Pa. Superior Ct. 73 and the uncontradicted evidence that the defendant had notice of the assignment two or three days before she paid the §450 to Botsford and Kunes, there might be a recovery in this case if the legal plaintiffs had complied with their contract so that they could have sued the defendant and recovered on an action begun at the date of the present one. Upon consideration of the case in this aspect we are of the opinion that the plaintiff signally failed to show a compliance with the contract of June 19, 1902, and, therefore, the defendant’s point quoted in the fourteenth assignment of error ought to have been affirmed. This assignment is as follows : “ The court erred in refusing defendant’s point. The point and answer are as follows:' ‘ Counsel for the defendant has requested the court to charge the jury that under all the evidence in the case the verdict of the jury must be in favor of the defendant. We decline to so charge, but direct you to find for the plaintiff in the sum of §450, to which you will add interest from October 1, 1902. Counsel for defendant except to the above charge and answer to points before verdict, and request that the same be reduced to writing and filed.’ Bill sealed for defendant.”

The above assignment of error must be sustained. After the amendment bringing the legal plaintiffs upon the record, the learned court rightly instructed the jury that the burden was upon the plaintiff to show a compliance with the contract and the right to collect money thereon, and that on no theory could the plaintiff recover, except that the writing of September 24, 1902, was an equitable assignment to the bank of $450 arising out of the contract. In any .view of the evidence and the law, questions of fact were raised for the consideration of the jury. The learned court delivered an elaborate charge which seems to point to an intention to submit the questions of fact to the jury. If the court did not so intend, it is difficult to understand the purpose of the lengthy charge. The payment by the defendant of $450, September 29, 1902, to the legal plaintiffs, may have been some evidence against the defendant, but it was not sufficient in connection with the other evidence to carry the question of her liability to the jury, much less to warrant a binding instruction in favor of the plaintiff. But when the evidence was closed and the defendant asked for a binding instruction in her favor, the learned court seems suddenly to have reached the conclusion that she ought to pay $450 to the use plaintiff, as a penalty, perhaps, notwithstanding the fact that she had paid it to the legal plaintiffs on September 29, 1902. It does not seem to have been put upon the ground that the legal plaintiffs .had complied with their contract. But if it was put upon that ground the evidence did not warrant the conclusion. The fact that the legal plaintiffs were able on September 29, 1902, by persuasion, representations, etc., to induce the defendant to hand over to them $450, which they could not then have legally collected, furnished no ground for the court to give a binding instruction in favor of the plaintiffs for the recovery of another $450.

We find in the record fifteen assignments of error. We do not sustain the first and second, relating to the amendment of the record, and having sustained the fourteenth, which disposes of the case, relieves us from passing upon the other twelve assignments, although some of them might have been sustained. The plaintiffs have had their day in court and having failed to make a case, they are not entitled to another experiment.

The judgment is reversed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    D. B. Martin Company, Appellant, v. Williams.

      Contract — Principal and agent — Affidavit of defense — Practice, C. P.

    In an action to recover the price of fertilizers for use on a farm, it appeared from plaintiff’s statement that the owner of the farm had, previous to the purchase of the fertilizers, entered into an agreement in writing with a married woman by which the latter with the assistance of her husband was to farm the land and divide the net profits with the owner. The statement of claim set forth the contract and averred directly that the defendant had appointed the husband as assistant and agent to carry on the business of farming the land, and that the husband acting as agent of the defendant purchased the material, and that the fertilizers were usual, proper and useful articles for carrying on farming operations as contemplated by the contract between the owner and her associate. An-affidavit of defense was filed which stated that the man to whom the goods were sold “was not at the time of the purchase by him of said goods, the agent of deponent, and acting in that behalf under her authority and direction, nor was his said action in purchasing said goods ever ratified or approved by her,” and that the purchaser of the goods was not a party to the agreement mentioned in the statement, or by said agreement constituted and appointed deponent’s agent. Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued Nov. 21, 1905.
    Appeal, No. 26, Oct. T., 1905, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1904, No. 57, discharging rule for judgment for want of a sufficient affidavit of defense in case of The D. B. Martin Company v. Hetty A. Williams.
    Before Rice, P. J., Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Stout, P. J.

    The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.

      Error assigned was order discharging the rule for judgment.

      Herman Yerkes, of Yerkes, Ross & Ross, with him Frank R. Shattuck, for appellant.
    — The affidavit does not meet the material averments of the statement. It but states conclusions and not facts or details from which the court may say whether or not they amount to a defense. This is not sufficient: Marston v. Trustees of State Hospital, 18 Pa. Superior Ct. 547; Mack Paving Co. v. Young, 166 Pa. 267; Superior Nat. Bank v. Stadelman, 153 Pa. 634.
    March 12, 1906:
    Where one manages a farm for another it is such an agency as authorizes the employment of labor and can be established by oral proof: Patterson v. Brindle, 9 Watts, 98; Duncan v. Hartman, 143 Pa. 595; Marshall v. Bobst, 1 Pittsburg, 137.

      Wm. C. Ryan, for appellee.
    — The affidavit expressly traverses the original obligation upon which the plaintiff bases its cause of action, with a specific denial of its material parts, and the whole tenor of said affidavit is in refutation of the claim set forth in plaintiff’s statement: McPherson v. Bank, 96 Pa. 135; Hutton v. McLaughlin, 1 Pa. Superior Ct. 642; Williams v. Myers, 3 Pa. Superior Ct. 481; Leo v. Pennsylvania Railroad Company, 9 Pa. Superior Ct. 196; Deacon v. Smaltz, 10 Pa. Superior Ct. 151.
   Opinion by

Porter, J.,

The plaintiffs brought this action of assumpsit against Hetty A. Williams and Sarah W. Brown and judgment was taken against Sarah W. Brown in default of an affidavit of defense. Hetty A. Williams filed an affidavit of defense, which the court below deemed sufficient and discharged a rule for judgment, from which order the plaintiffs appeal.

The plaintiffs attached to and made part of their statement a copy of a written agreement between Hetty A. Williams and Sarah W. Brown which contained the following material covenants : Hetty A. Williams being the owner of three farms agreed to have Sarah W. Brown, with the assistance of her husband, George B. Brown, farm the same on the following. conditions. “. . . . Parties of the second part agree to use their best skill and endeavor to farm said properties in the most profitable manner, make all returns for sales made from the product of said farms to parties of the first part, as well as to keep an account of all expenses of operating said properties, and to turn them over to Edith Williams for recording. ... It is further agreed between the parties hereto that the net profits derived from the farming of properties, above referred to, shall be equally divided between the parties hereto. It is understood that all expenses of every nature in the working of said properties, including interest on mortgages, and taxes on said properties shall be deducted from the gross in order to arrive at the net profits. . . . It is further agreed that Edith Williams shall keep all accounts as well as cash account, same to be open to and subject to the inspection of both parties hereto at all times, and an account of stock shall be taken at least once each year on the first day of April, and the amount of each one’s interest, and profits, and losses determined.” The agreement was signed by Hetty A. Williams and Sarah W. Brown, but not by George B. Brown. The statement distinctly averred that George B. Brown was appointed by the defendants as assistant and agent to carry on said business ; that said George B. Brown purchased of plaintiffs the fertilizers, for the price of which this action was brought, for use in said farming operation, and that the goods were furnished and delivered to said defendants for use upon said farms and that they were used by the defendants upon the farms. The statement further averred that the materials and fertilizers furnished and delivered by plaintiffs “ were usual, proper and useful articles for carrying on the farming operation upon said farms, and their purchase was an expenditure of the nature provided and specified for in said agreement, under which he (George B. Brown) was appointed agent, in the working of said properties and the proper farming and improvement of the same.”

The only defense alleged in the affidavit of Hetty A. Williams was, “That George B. Brown .... was not at the time of the purchase by him of said goods, the agent of deponent and acting in that behalf under her authority and direction, nor was his action in purchasing said goods ever ratified or approved by the deponent ;• that while deponent did enter into the agreement set forth in said statement, marked exhibit ‘A,’ with Sarah W. Brown, the said George B. Brown was not a party thereto, nor by said agreement constituted and appointed deponent’s agent or representative in any capacitju”

The allegation of the affidavit of defense that Brown “ was not at the time of the purchase by him of the goods, the agent of deponent and acting in that behalf under her authority and direction,” can only, in view of the failure to deny the specific allegation in the statement of the facts from which the plaintiffs averred the power of the agent to have arisen, be accepted as an assertion of a conclusion of law. The allegation that George B. Brown was not a party to the agreement, or by said agreement constituted and appointed deponent’s agent or representative in any capacity, is evasive. It was not necessary that Brown should be a party to the agreement in Order to enable the parties to avail themselves of his services in carrying on the farming operation. The statement of the plaintiffs did not leave the authority of Brown dependent upon any mere inference arising from the provision in the contract that Sarah W. Brown should, “ with the assistance of her husband ” farm the lands; that statement contained the independent and specific allegation that the defendants had “ appointed George B. Brown as assistant and agent to carry on said business, the best skill and endeavor to be used to farm said properties in the most profitable manner,” and that Brown had acted in that capacity. The affidavit of defense did not deny that Brown had been so appointed to carry on said business, nor that he had acted in that capacity; it simply averred that the written agreement did not clothe him with that authority. The written agreement expressly authorized Sarah W. Brown to associate her husband with herself in the management of the farms, and under this provision she could avail herself of his services to do any act or make any contract which she had power to do or make. The statement averred that the fertilizers were usual, proper and useful articles for carrying on the farming operations upon said farms, and their purchase was an expenditure of the nature provided and specified for in said agreement, in the working of said properties and the proper farming and improvement of the same. This allegation was not denied in the affidavit of defense and must be accepted as true. Assuming that it was usual and customaiy to use fertilizers of this character in farming operations in that locality, then Sarah W. Brown had authority to make such a purchase and bind by the contract Hetty A. Williams jointly with herself, under the provisions of their written agreement: Duncan v. Hartman, 143 Pa. 595. What Sarah W. Brown might have done she, under the provisions of this agreement, could authorize her husband to do.

The affidavit of defense does not deny that George B. Brown had been appointed agent to carry on this farming operation, nor that he had purchased these fertilizers for the purpose of that operation, nor that the fertilizers had been actually used in the operation upon the lands of the defendant, Hetty A. Williams, nor that such purpose and use was usual and proper in such business. The defendant having permitted all of these facts to stand uncontradicted, we are constrained to hold the affidavit of defense insufficient. Hetty A. Williams in her affidavit expressly admits that she had executed the contract the legal effect of which was to make her jointly liable with Sarah W. Brown for debts lawfully contracted in carrying on the farming operation in which they became associated. She may now honestly believe that although George B. Brown was regularly authorized to buy supplies to be used in carrying on the business he did not, while acting within the scope of that business, have authority to bind her personally, but that belief is a mistake of law.

The record is remitted to the court below, with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.


text:
    First National Bank of Pittsburg, Kansas, v. Darlington, Appellant.

      Corporations — Foreign corporations — Liability of stockholders.

    In an action by a judgment creditor of a Kansas mortgage, loan and trust company against a Pennsylvania stockholder of the company to enforce the additional liability provided by the constitution of Kansas, where it appears that the judgment of the plaintiff was based upon an accommodation indorsement by the corporation, the defendant cannot relieve himself from liability, unless he can show by the charter of the corporation that the debt was not “essential to the transaction of its ordinary affairs,” and within “the legitimate objects of its creation.”
    Argued Nov. 21, 1905.
    Appeal, No. 54, Oct. T., 1905, by defendant, from judgment of G. P. Chester Co., Oct. T., 1901, No. 17, on verdict for plaintiff in case of First National Bank of Pittsburg, Kansas, v. Hoopes Darlington.
    March 12, 1906:
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit against the stockholders of a foreign corporation. Before Butler, J.
    The facts are stated in the opinion of the Superior Court and in the report in 25 Pa. Superior Ct. 438.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $1,418.82. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. S. Harris and J. E. E. Hause, for appellant.

      T. W. Pierce, for appellee filed no paper-book.
   Opinion by

Porter, J.,

The only assignment of error refers to the refusal of the court below to give binding instructions in favor of the defendant. The court had, at a former trial of the case, given the instructions prayed for and the judgment in favor of the defendant was, upon that ground, reversed by this court: First National Bank of Pittsburg, Kansas, v. Darlington, 25 Pa. Superior Ct. 438. All the evidence at the former trial, and in addition the charter of the corporation, had been presented at the trial which resulted in the judgment from which we have this ' appeal. The facts are fully set forth in the report of the former appeal, 25 Pa. Superior Ct. 438, and for matters of detail it is only necessary to refer to that report, a mere outline being all that is here necessary.

The defendant is and was at the time the alleged liability arose a stockholder in the Neosho Valley Investment Company, a Kansas corporation, and within that class of corporations the stockholders of which are individually liable, under the constitution and laws of Kansas. The Pittsburg, Frontenac & Suburban Electric Railway Company executed a negotiable promissory note, the one on which plaintiff’s claim is founded, payable to the order of the Neosho Valley Investment Company, which latter company, for value, indorsed and delivered to plaintiff said note, merely for the accommodation of the Pitts-burg, Frontenac & Suburban Electric Railway Company; the plaintiff purchased the said note before maturity, paying full value therefor, in the ordinary course of business, and without any notice of the fact that said indorsement was an accommodation indorsement, and without any notice of any defects existing in said note as between the parties thereto; the plaintiff brought an action in the state of Kansas against the Neosho Valley Investment Company, upon the indorsement, and recovered a judgment against that corporation, which proved to be insolvent, and the present action is brought to enforce the individual liability of the appellant, as a stockholder. The charter of the Neosho Valley Investment Company had not been offered in evidence at the first trial, and we said, in our former opinion, “ If when the charter of the corporation in question is produced it should be found to be ‘ essential to the transaction of its ordinary affairs,’ and within ‘ the legitimate objects of its creation,’ that it should have the power to negotiate and indorse commercial paper, then the contract here in question was within the general scope of its business.”

The charter was offered in evidence at the trial which resulted in the present judgment, and it is conceded that the corporation had power to make, buy, sell, negotiate and indorse commercial paper. The power .to indorse commercial paper which the corporation had exercised was one essential to the transaction of its ordinary affairs and within the legitimate objects of its creation. This controlling fact distinguishes the present case from Ward v. Joslin, 186 U. S. 142 (22 Sup. Ct. Repr. 807), in which the power attempted to be exercised was not within the scope of the business of the corporation, and the fact that the transaction was a mere loan of the credit of the corporation appeared upon the face of the contract.

When the transaction is not the exercise of a power not conferred upon a corporation, but the abuse of a general power in a particular instance, as the dishonest act of an officer within the general scope of his authority, the abuse not being known to the other contracting party, the doctrine of ultra vires does not apply: First National Bank v. Darlington, 25 Pa. Superior Ct. 438, and cases there cited.

The stockholders of the corporation had elected the officers . to whom the management of its business was committed; so long as those officers acted in a regular manner and the contracts into which they entei’ed were such as the charter of the corporation authorized it to make, although they may have used the power with which they were vested to the detriment of the interest of the stockholders, the abuse not being known to the other contracting party, the corporation was bound by the contracts, and a liability arising thereupon was a due of the corporation. The authorities referred to in our former opinion lead to the conclusion that there was no error in the refusal of the court below to affirm the point submitted by the defendant.

The judgment is affirmed.


author: Beaver, J.,

text:
    Taylor v. Canton Township, Appellant.

      Practice, C. P. — Statement of claim — Amendment.
    An amendment of a statement of claim, which is simply a restatement of the grounds upon which the plaintiff seeks to recover, is permissible.

      Damages — Flood—W aters.

    In an action to recover damages to crops caused by a flood, the testimony should be confined to the amount of damage sustained at the time of the injury. It is error to prove the value of the crops when harvested.
    In an action against a township to recover damages for injuries to crops injured by a flood alleged to be due to a change in a highway, the township is liable only if there was actual negligence in the doing of what the road commissioners, in the exercise of their judgment, determine to be best.

      Evidence — Irrelevant testimony.

    Because a portion of the testimony of a witness has been admitted, is no reason why the witness should be allowed to continue to testify, after objection, to what is irrelevant to the issue.

      Waters — Flowage—Easement—Dominant and servient tenements.

    Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in, or flow or fall upon, the superior. The discharge of such water is to be made in a manner in which nature has provided. If. a new course is made, different from that which nature has provided, and the discharge is thereby made to fall, upon a different place, and in a different manner, so as to cause damage to the owner of the servient tenement, the owner of the superior or dominant tenement wrill be liable.
    Road commissioners may for the protection of a roadbed collect waters which would naturally flow upon lower land, and direct their flow by their own force and volume upon the lower tenement in such a way as to preserve the road, if they do not thereby change their course to the injury of the owner of the lower tenement.

      Waters — Negligence—Concurrent negligence — Act of God.

    Where an injury is occasioned by flood or storm, the concurrence of negligence with the act of God in producing the injury is necessary to fix liability. If the act is so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant owner cannot be made responsible.
    A landowner cannot stand idly by and see his property destroyed by water, if by an effort on his part the injury may be avoided.
    Where public officers in the discharge of a public duty, act according to their best judgment, the evidence of negligence or wrongdoing ought to be clear which would involve the municipality for which they act, in damages.
    Argued Nov. 21, 1905.
    Appeal, No. 89, Oct. T., 1905, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1902, No. 565, on verdict for plaintiff in case of Lelia E. Taylor v. Canton Township.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Fanning, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $400. Defendant appealed.

      Errors assigned were (1-27) various rulings on evidence and instructions sufficiently set forth in the opinion of the Superior Court.

      T. S. Hickok, with him W. C. Sechrist and Lilley, Wilson & Lilley, for appellant.
    — The holding of municipal corporations liable for damages for acts of its servants is unreasonable. It exists only in cases of maintaining roads and certain analogous duties, and these rest on precedent instead of reason: Ford v. School District, 121 Pa. 543.
    For an unauthorized, willful and wanton or malicious trespass committed by an agent or servant, the principal or master is not liable. Neither is a master or principal liable for the acts of a servant or agent committed outside the scope of his employment: Pennsylvania Co. v. Toomey, 91 Pa. 256; Pittsburg, etc., R. R. Co. v. Donahue, 70 Pa. 119; Elliott v. Philadelphia, 75 Pa. 347; Royse v. May, 93 Pa. 454; Ford v. School District, 121 Pa. 543; Root v. O’Neil, 24 Pa. 326; Machinery Co. v. Old Lycoming Twp., 25 Pa. Superior Ct. 156.
    That the lawful measure of damages was the value of the crop at the time the damage occurred to it is undoubted : Irwin v. Nolde, 176 Pa. 594.
    The defendant had a right to clean out the bed of the stream to direct the flow of the water: Meixell v. Morgan, 149 Pa. 415.
    It is settled law that in agricultural and mining operations ditches may be dug to direct the flow of the water, but of course not to divert it: Kauffman v. Griesemer, 26 Pa. 407; Rhoads v. Davidheiser, 133 Pa. 226; Miller v. Laubach, 47 Pa. 154; Glass v. Fritz, 148 Pa. 324; Meixell v. Morgan, 149 Pa. 415; Coal Co. v. Sanderson, 113 Pa. 126; Martin v. Riddle, 26 Pa. 415; Huddleston v. West Bellevue Borough, 111 Pa. 110.
    There may be some negligence of a defendant and some injury as the result of it, and still he may not be liable. He is not if the flood or storm is extraordinary and of such severity as of itself to have produced the damage, negligence or no negligence: Baltimore & Ohio R. R. Co. v. School Dist., 96 Pa. 65; Helbling v. Cemetery Co., 201 Pa. 171.

      J. W. Stone, of Stone & Brooks, and Rodney A. Mercur, for appellee.
    — Under all the authorities where the cause of action is the particular matter for which the suit is brought, and when the object of an amendment is not to forsake this but to adhere to it, and affect a recovery upon it it is the duty of the court when the merits of the case cannot be otherwise reached to permit the amendment: Erie City Iron Works v. Barber, 118 Pa. 6; Thompson v. Chambers, 13 Pa. Superior Ct. 213; Jackson v. Gunton, 26 Pa. Superior Ct. 203; Adam v. Moll; 6 Pa. Superior Ct. 380; Stoner v. Erisman, 206 Pa. 600.
    The argument of the appellant is based upon the express ground that municipalities have far greater rights than individuals in diverting waters and that they have the right to do as they believe in their judgment is the best thing to be done, whether it inflicts injuries upon private land owners or not. Such we contend is not the law of this state, and never was, as the following authorities show : Huddleston v. West Bellevue Boro., 111 Pa. 110; Elliott v. Oil City, 129 Pa. 570; Torrey v. Scranton, 133 Pa. 173; Rohrer v. Harrisburg, 20 Pa. Superior Ct. 543; Toole v. Del., Lack. & West. R. R. Co., 27 Pa. Superior Ct. 577; Weir v. Plymouth, 148 Pa. 566; Bohan v. Avoca Boro., 154 Pa. 404; Goulden v. Scranton, 3 Lancaster Law Rev. 340; Gould on Waters, sec. 272; 2 Dillon on Munic. Corp. sec. 1042; West Orange v. Field, 37 N. J. Eq. 600; Byrnes v. City of Cohoes, 67 N. Y. 204; Noonan v. City of Albany, 79. N. Y. 470; Brown v. Ry. Co., 183 Pa. 38; Casebeer v. Mowry, 55 Pa. 419; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9; Bacon v. Arthur, 4 Watts, 437; Bell v. McClintock, 9 Watts, 119; Forster v. Juniata Bridge Co., 16 Pa. 393; Dugan v. Bridge Co., 27 Pa. 303; Livezey v. Phila., 64 Pa. 106; Knoll v. Light, 76 Pa. 268; Helbling v. Cemetery Co., 201 Pa. 171; Humphrey v. Irvin, 18 W. N. C. 449.
    March 12, 1906:
   Opinion by

Beaver, J.,

The Towanda Creek, a stream of considerable size, subject to sudden freshets, runs eastwardly through the township of Canton. Parallel to it, and on lower ground, runs for some distance what is known as Spring Brook, which rises a little west of the locus in quo in the present case and runs eastwardly for a considerable distance, and then in a northeasterly direction, emptying into the stream first mentioned. The slope of the ground between these two streams is naturally, therefore, in a northeasterly direction. The Grover road, one of the principal roads of the township, lies between them. The premises, for the injury to which the plaintiff claims damages in this suit, is north of, and lower than, the said road.

At some time in the past — just when does not clearly appear, and it is not material — the Towanda Creek made a new channel for itself, flowing in a more northerly direction than the original one, and then, making a quick turn to the east, returned to its main and original channel. At this abrupt turn which was likely to overflow in times of high water, a dyking or riprap, said to be between thirty and forty rods from the Grover road, had been erected a number of years ago by the joint efforts of the road commissioners and the owners of the land. In 1901 an extraordinary freshet greatly increased the volume of the water flowing through the creek, which not only increased its height, but ate around this dyking or riprap, which was of timber, washed it out to a large extent and carried it down the stream. The result was that the stream overflowed its banks, flowed across the valley, washed out the Grover road, carrying much of its surface away, and exposed the terra cotta pipes which had been used to .carry the overflow water across the road, so that the heavy travel along the road crushed them and they were no longer useful for the purposes for which they had been originally laid.

It seems to be admitted that the road commissioners, who have charge of the roads of the township, had before this time endeavored to carry the overplus of water, particularly from the upper side of the road, as far as possible, in an open drain alongside the road for a considerable distance, until it emptied into Spring Brook above mentioned, prior to its junction with the Towanda Creek.

In reconstructing the road after the freshet, it became necessary to remove the terra cotta pipes referred to. The road commissioners, in determining what was best to be done, concluded that it was not advisable to replace the dyking upon private property, although they had the permission of the owner to do so, and indeed his offer to render assistance in restoring it, and ’ instead of doing so determined to raise the road sufficiently to withstand any pressure of water which might come from the creek, place a bridge across it instead of the terra cotta pipes and thus provide .for any surplus of water which during freshets might come from the direction of the creek. They accordingly enlarged the opening in the road, built abutments and laid a bridge, the natural tendency of which and the natural result of which later was to throw more water upon the premises of the plaintiff than had hitherto flowed there. This expected result, arising from the removal of the dyking, rendered it expedient, in order to avoid a repetition of the washing out of the road, to change the side drains, and allow the water coming clown from the creek to take the course which, in the judgment of the commissioners, was indicated by the natural conformation of the ground.

It would seem from the verbal testimony, and also from the draft which was in evidence, that there was no regular stream or water course running from Towanda Creek toward Spring Brook, the outlet covered by the bridge in the road being intended and provided only for giving vent to the water which might flow from the creek toward the brook in times of extraordinary flood conditions.

In July, 1902, during a freshet, the Towanda Creek overflowed its banks, and the water which came therefrom was given vent, through the culvert or passage covered by the bridge intended therefor, and thrown upon the property of the plaintiff, destroying a portion of her crops and injuring, as was alleged, her buildings.

Alleging negligence on the part of the defendant township by the action of its road commissioners in building the culvert or bridge in question, by which more water was thrown upon her premises than had been previously cast upon them through the pipes which had theretofore existed, she brought her action of trespass.

1. The first assignment of error relates to the amendment to' the statement of claim allowed upon a proper application. In reference to this, it is probably unnecessary to say more than that, by the amendment, the form of action was not changed, nor did the cause of action materially differ. It was simply a restatement of the grounds upon which the plaintiff sought to recover. This, under all our authorities, is permissible: Stoner v. Erisman, 206 Pa. 600; Thompson v. Chambers, 13 Pa. Superior Ct. 213; Jackson v. Gunton, 26 Pa. Superior Ct. 203.

2. If the plaintiff had made an offer to prove the value of the crops when harvested, either as to the measure of damages sustained or as a means of determining the amount of damages, it would have been clearly incompetent and irrelevant. The flood occurred in July when the tobacco was in the green. What its value would have been when harvested, therefore, could not in any way help the jury to determine what the value of it was at the date of its destruction. The testimony was no more relevant after it was in than would have been the offer, which should have been rejected. In view of the fact, however, that the plaintiff’s husband subsequently testified that the damages instead of being $150, based upon a harvested crop, were $50.00, as the crop at the time of its destruction was, we see no special injury to the defendant by the refusal to strike out the testimony. If this stood alone, we would probably not reverse, but inasmuch as the case goes back for trial, the testimony should be confined to the amount of damage sustained at the time of the injury.

3. In view of the admission that, “ It is not contended by the appellee that the defendant township could have been legally compelled to go outside of the highway and riprap or dyke the banks of Towanda Creek for the purpose of preventing the overflow of waters from flowing into and down the highway,” it is not clear to us that any testimony in regard to their not doing so or the reasons for their failing to do so was in any way relevant to the issue. The mode of repairing the highway was a question for the commissioners. Having exercised their judgment in doing so, we cannot see that the plaintiff could call them to account in this action and recover damages against the township, unless more water was cast upon the plaintiff’s land than would naturally flow upon it or there was actual negligence in the doing of what the commissioners, in the exercise of their judgment, determined to be best. Much of the testimony, however, of which complaint is now made, was received without objection on the part of the defendant. If objection had been made at the beginning instead of near the close of the testimony, the admission of which is now assigned for error, the court could have much more intelligently disposed of the entire question. Because a portion of the testimony had been admitted, however, is no reason why the witness should be allowed to continue to testify, after objection, to what is irrelevant to the issue. We think the objections to the testimony of Brown, as to what negotiations he had with the commissioners as to the repair of the dyking and what he did in reference thereto, were not relevant and should have been excluded.

4. As to the fifth and sixth assignments, we can see no error either in admitting the testimony of the witness Williams, as complained of in the fifth assignment, or the comments of the court upon it, and that of other witnesses corroborating him, as assigned for error in the sixth assignment. The latter is faulty in not referring to the pages from which the excerpts of the charge complained of are taken, although both relate to the same subject.

5. We are not clear that the testimony complained of in the seventh assignment of error did not have some bearing upon the question as to when and how the burden of carrying the water from the roadway was first cast upon the plaintiff. If that were the object of it, it was doubtless relevant. Of course, if the object was to make it in any sense the basis of a claim for damages, it was entirely irrelevant and the court evidently recognized that and admitted it, not for the purpose of showing damages but explaining the manner in which the plaintiff’s land was first, or at least previously to the acts complained of, made 'to bear the burden of the waste water from the roadway. In this view of it, we think it was admissible and the remarks complained of in the eighth assignment, taken in their proper connection and viewed as a whole, did the defendant no harm.

6. The testimony of Leahy, complained of in the ninth assignment, should not have been admitted. It was not competent for him to testify as to the motives or the reasons which influenced the road commissioners in refusing to restore the dyking at Towanda Creek. When the testimony, however, assumed practical significance, the court in effect sustained the objection by saying “ That is a legal question,” and the examination of the witness was suspended. We think the testimony did the defendant no harm.

7. This brings us to the consideration of the general principles involved in the charge and in the answers to points which constitute the basis of very numerous assignments • of error. We can probably simplify the case somewhat by the statement of some simple well known principles which, in their application to the facts of this case, must in effect govern it.

(a) As was said by Mr. Justice Woodward, in Kauffman v. Griesemer, 26 Pa. 407: “ Almost the whole law of water courses is founded oh the maxim of the common law, aqua currit et debet currere (water flows and ought to flow). Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of -all waters which by nature rise in or flow or fall upon the superior.” It may be added that the discharge of such water is to be made in the manner in which nature has provided. If a new course is made, different from that which nature has provided, and the discharge is thereby made to fall upon a different place and in a different manner, so as to cause damage to the owner of the servient tenement, the owner of the superior or dominant tenement would be liable. As to the right to discharge the water coming from the dominant tenement upon the servient tenement, see also Rhoads v. Davidheiser, 133 Pa. 226; Meixell v. Morgan, 149 Pa. 415.

(&) It is practically admitted by the plaintiff, that no obligation rested upon the commissioners to restore the dyking. If, therefore, there was an increase in the flow of water which overran the banks of the creek in time of freshets, they were bound to take care of it, when it reached the road. How were they to do so ?

(c) If there was a natural depression from Towanda Creek to Spring Brook, no matter whether a water course, technically so called or not, and no road had been there, the plaintiff would, of course, have been bound to take care of the water flowing from the lands south of or above hers to Spring Brook.

(d) The obligation to do so was not changed by the throwing up of the road above her premises. It was the duty of the supervisors to build the road in such a way as to resist the floods coming down from Towanda Creek and, if the natural flow of the water indicated the point at which they built the bridge, as one at which the surplus water should be allowed to flow across the road, they were justified in building the bridge in such a way as to vent the water which came down from Towanda Creek and cast it upon the plaintiff’s land, if the natural conformation of the ground so indicated.

(e) It was not a question as to whether more water was so cast upon the land than previous to the erection of the bridge. Confessedly there was more water. The increase, however, was occasioned not by the act of the commissioners in erecting the bridge but (1) by the removal by flood of the dyking which allowed more water to overflow the banks of the creek than previously, for which the township was not responsible ; and (2) the extraordinary rise in the water in the creek which was occasioned by natural causes which, in the very nature of the case, were not and could not be controlled by the commissioners. This increase of water the road commissioners were bound to take care of. They could do this only by making the road so high that it would not be washed away, and yet not high enough to dam the water back upon the adjacent landowners. To prevent this it was necessary to provide an outlet. In providing such an outlet, however, the accumulation of water must be made to flow in its natural course, and if in following such a natural course it flowed upon the lands of the plaintiff she was bound to bear the burden and was not entitled to any damages therefor; hence there were two serious questions for the jury: 1. Was the character of the ground such that the water, whateverits volume, would naturally flow from Towanda Creek to Spring Brook over and through the land of the plaintiff ? 2. Was it cast upon her land in the way in which it would have been naturally cast in case no road and no bridge had existed ? These questions, and particularly the first, were left to the jury, but in the charge and in the answers to numerous points of the defendant there were a number of very significant qualifications and omissions which we will now consider.

8. In the charge : “ If you find that the defendant has not changed or thrown water upon her land that did not formerly run there, or find that the defendant did not increase the flow of water upon her premises, or that the damage was occasioned solely by an extraordinary storm which human foresight could not guard against or foresee, then you would simply say, ‘ we find for the defendant; ’ ” and, in the answer to the defendant’s fifth point: This point is affirmed with the qualification that the defendant would have been guilty of a negligent act by causing a greater flow of water on the plaintiff’s land; ” and again, in the charge, as complained of in the thirteenth assignment : “But as we have said to you, if the township has directed the flow of water upon Mrs. Taylor’s land that did not originally flow there, or if they have increased the flow of water upon her premises, then there could be a recovery for such injuries as were the natural and proximate cause of such negligent act.” Throughout the charge and in the answers to points the trial judge seems to have had in mind the fact, that, if by the erection of the bridge and the outlet thereunder, more water was cast upon the plaintiff’s land than had previously flowed there, the defendant was by.that fact alone made liable in damages, whereas, so far as appears from the testimony, the road commissioners had not increased in any way the flow of water upon the plaintiff’s land. There was, of course, more water than previously but they were not directly responsible for the increase. It was not their act. It was the act of God, unless they diverted to and upon the plaintiff’s land water which would have flowed elsewhere. No such qualification, however, was made. The negligence of the defendant was made to turn solely upon the question of an increased flow of water, regardless of whence it came or how it accumulated, or the motives which actuated the commissioners. In this we think there was serious error, arising from the missapplication of the general principles heretofore recounted which the court evidently had in mind in a general way.

9. The fourteenth,, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth assignments of error relate to the refusal of the court to affirm certain points submitted by the defendant. The fourteenth assignment, covering the refusal of the court to affirm the defendant’s twelfth point, is as follows: “ Under the statement filed by the plaintiff in this case, it is not incumbent upon the defendant to establish by testimony the fact that the overflow from Towanda Greek reached the public highway at the point where the bridge is located, and if the jury believe from the evidence that, if there had been no bridge or public highway at the point where the bridge is located the water complained of would have flowed over the land of the plaintiff as it did, the plaintiff cannot recover. Answer : Refused without reading.” The plaintiff’s statement alleged that the overflow from Towanda Creek, after the washing out of the embankment or dyking, “ would naturally have flowed in and upon said public road aforesaid. ” There was also evidence that there was a natural depression, or dip or sag as the court calls it, in that direction. If, therefore, the jury believed from the evidence that, if there had been no bridge or public highway at the point where the bridge is located, the water complained of would have flowed over the land of the plaintiff. as it did, she clearly could not recover. The point should have been affirmed.

So the fifteenth, sixteenth, seventeenth, eighteenth and nineteenth assignments of error, all of which relate to the refusal to answer certain points raising similar questions in regard to the natural flow of the water coming from Towanda Creek to Spring Brook over the plaintiff’s land, should have been affirmed, with possible exception of that part of the defendant’s ninth point in the eighteenth assignment which relates to the accumulation and somewhat increased quantity of water, which seems to us to be too broad, in that it did not confine the increase to what naturally flowed from Towanda Creek, seeking its outlet on plaintiff’s land.

10. The converse of this proposition was set forth in various points of the plaintiff, which were affirmed and which are complained of in the twenty-first, twenty-second, twenty-third and twenty-fourth assignments of error. The plaintiff’s first point and the answer thereto, complained of in the twenty-first assignment, are as follows: “ If the jury find from all the evidence in the case that the defendant has caused the surface waters of the highway to be accumulated, by artificial embankments aci’oss the highway and the gutters, in such a manner as to force said waters in a largely increased flow over the plaintiff’s premises, thereby occasioning injury to the plaintiff’s land, the defendant is liable for all damages caused by such negligent act and the plaintiff is entitled to recover.” This point was affirmed without qualification. It is faulty in several respects. It assumes, negligence. With what period is the largely increased flow mentioned therein to be compared? Does it relate to waters that would not have naturally flowed over the lands of the plaintiff ? If not, the road commissioners had a right to collect such waters and have them flow by their own force and volume upon the lower tenement in such a way as to preserve the roadbed, if they did not thereby change their course to the injury of the plaintiff: McCormick v. Kinsey et al., 10 Pa. Superior Ct. 607.

So as to the second point of the plaintiff which was affirmed without qualification: “ If the jury find from the evidence that the defendant township had knowledge that a neighboring turbulent stream, in times of high water, frequently overflowed its banks and discharged its waters upon the highway in the immediate vicinity of plaintiff’s lands, have by means of artificial embankments and excavations caused said waters to be forced and driven across said highway for the purpose of keeping said waters out of said highway, and thereby discharging them upon the plaintiff’s lands, the defendant is liable for all damages caused thereby, and your verdict should be for the plaintiff.” This point should at least have been qualified. It was the duty of the commissioners to protect their road from the overflow referred to and if, in doing so, they cast no more water, nor in a different way, upon the plaintiff’s land, than would have flowed there naturally from the overflow of the Towanda Creek, the township would not be liable.

The plaintiff’s fourth point, assigned for error in the twenty-fourth assignment, is as follows: “If the jury find from the evidence that the defendant township, in its discretion, have for past years maintained an embankment or dyking on the banks of Towanda Creek for the purpose of preventing the overflow waters there from flowing into the highway and damaging the same, and that subsequently said dyking lias been abandoned by said defendant and, in lieu thereof,' defendant had excavated and erected an embankment across said highway.and its gutters, for the purpose of protecting said highway, and discharging the overflow waters which would flow from said creek upon the plaintiff’s lands, thereby causing injury, the defendant is guilty of negligence and is liable for all damages committed to plaintiff’s lands by reason thereof.” This was affirmed without qualification. It is difficult to determine from the manner in which the point is affirmed what was the negligence complained of. Was it the failure to restore the dyking at Towanda Creek ? The plaintiff has admitted elsewhere that there was no negligence in this and that the township was not bound to maintain the dyking. Was the negligence in “ discharging the overflow waters which would flow from said creek upon the plaintiff’s land ? ” This would be no more negligence in itself than the refusal to maintain the dyking, if by that expression is meant the waters which would naturally flow from the creek over the plaintiff’s land. Was it by reason of the manner in which the increased flow of water was discharged? If so, that should have been distinctly stated. The point is faulty and should have been refused.

11. The defendant was entitled to a simple or properly qualified affirmation of its eleventh point, the answer to which is complained of in the twenty-fifth assignment: “If the jury find from the evidence that the flood of July 24,1902, was an extraordinary flood, of such severity in itself as to have produced the damage complained of by the plaintiff, then the defendant is not responsible to the plaintiff therefor.” The point is predicated upon the character of the flood being “ in itself ” the cause of the damage. It eliminated by its very terms all other causes. It was hardly fair, therefore, to have brought into the answer, by way of qualification, the question of concurrent negligence. The answer was not responsive to the point. If, however, the qualification was necessary, it was of such importance that the attention of the jury should have been specifically called to what, under the circumstances, would constitute concurrent negligence. This question is one of great delicacy and requires most discriminating care in submitting it to a jury.

In B. & O. R. R. Co. v. School District, 96 Pa. 65, Mr. Justice Green said, in considering a similar question : “We are also of opinion that the court erred in their answers to the plaintiff’s second and third points. In affirming the first point the court ruled that, ‘If there was negligence on the part of the defendant concurring with the act of God at the time plaintiff’s loss was sustained, then the defendant is liable, and the jury are not bound to inquire whether the loss would have happened if the defendant had not been guilty of negligence.’ As we understand this point, it practically declares that, although the act of God alone, without any negligence of the defendant, would have caused the injury, the jury were not at liberty to consider that fact if in reality there was negligence on the part of the defendant concurring with the act of God. In other words, no matter how terrible, extraordinary and unprecedented were the storm and flood, so that they alone caused the injury, yet if there was concurring negligence of the defendant, although it did not produce the injury, and its absence would not have prevented it, still the defendant would be liable. The same idea is repeated in the plaintiff’s second point, that if the defendant’s negligence in any degree caused the loss, they would be liable. Now a small pebble in one of the culverts would, in some small degree, impede the course of tbe water, and yet the doctrine of this point, which the court affirmed, would make the defendant liable for the entire injury even though a huge avalanche of water were suddenly launched upon the stream and hurled with irresistible force upon the embankment and culvert in question. Such is not the law. This is the very highest possible degree of care, greater even than is required of railroad companies in the carriage of passengers. The correct doctrine on this subject was expressed in the case of the P., F. W. & C. Ry. Co. v. Gilleland, 56 Pa. 445, to wit: “A railroad company in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practised in such works. There is no liability on the part of a railroad company for not constructing a culvert so as to pass extraordinary floods.” The doctrine here enunciated would apply with even more force to the acts of public servants who act upon their best judgment in the construction of the highways of a township.

To the same’effect is Helbling v. Cemetery Co., 201 Pa. 171, in which it is decided: “ Where an injury is occasioned by flood or storm, the concurrence of negligence with the act of God in producing the injury is necessary to fix liability. If the act is so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant owner cannot be made responsible.” See also Berninger v. S. H. & W. Ry. Co., 203 Pa. 516.

12. The twenty-seventh assignment of error relates to the answer of the court to the defendant’s fifteenth point, which was: “ If the plaintiff could have made a ditch from the bridge in question over her land to Spring Brook, by reasonable expense and led the water away from her buildings, as testified to by defendant’s witnesses, she cannot, at any rate, recover for any damages she might have prevented by taking such precautions.” The court answered: “ This point, as drawn, we refuse, but we say to you that, if the evidence discloses any negligence on the part of the plaintiff that contributed to the injury, there can be no recovery,” and then proceeds with instructions as to what contributory negligence is. There was no allegation on the part of the defendent of any contributory negligence on the part of the plaintiff, as that term is usually understood. There does not seem to be in the evidence anywhere anything which would support such a contention. Nor was the court asked to say that there could he no recovery. The point as drawn contains a correct general principle. As was said by Mr. Justice Sharswood, in Chamberlin v. Morgan, 68 Pa. 168 : “ Undoubtedly it is incumbent in every case upon an injured party to do whatever he reasonably can to lessen the injury; ” and, in Mellick v. Penna. R. R. Co., 203 Pa. 457, the present Chief Justice said : “ The general rule for the measure of damages in cases of private injury by a public nuisance, is the cost of abating it, if that is less than the amount of the damages suffered.” The plaintiff could not stand idly by and see her property destroyed, if by an effort on her part the injury could be avoided ; but whether or not this was a case for the application of this general principle was a question for the jury, under' proper instructions. It may be seriously doubted whether she was bound to make a ditch before the rains descended and the floods came, and when the flood was on whether she could accomplish anything in the way of an attempt to' divert it from the house would be a question for the jury. The defendant was entitled to an answer to the point, with qualifications such as are indicated.

13. There is no malice on the part of the road commissioners alleged or attempted to be shown in this case. They apparently acted according to their best judgment, in the discharge of a public duty. Having been warned by the practical destruction of the road by the freshet of 1901, they attempted to provide against similar disaster in the future. In doing so, did they act intelligently ? Did they fail to exercise the care which was required at their hands, according to the circumstances ? Did they assemble or gather together more water than would have naturally flowed over the plaintiff’s property, if the road had not been there ? And if not, or if in doing so, did they seek out a channel, which was not indicated by the actual conformation of the ground, to the plaintiff’s hurt ? We cannot say that there was no evidence to be submitted to the jury upon these questions, but where public officers, in the discharge of a public duty, act according to their best judgment, the evidence of negligence or wrong doing ought to be clear which would involve the municipality for which they act in damages. See Krug v. St. Mary’s Boro., 152 Pa. 30, and contra Sheib v. Collier Twp., 8 Sadler’s Reports (Penna. Supreme Ct. Cases) 526. See also Gift v. City of Reading, 3 Pa. Superior Ct. 359,

We have considered this case at very considerable length for the reason that it was difficult to dispose of it without considering the assignments of error separately. For the reasons stated in disposing of these several assignments, the case must go back for a retrial.

Judgment reversed and a new venire awarded.


text:
    Commonwealth v. Shoener, Appellant.

      Criminal law — Public officers — Demand for payment of public funds— Statute of limitations — Act of March 31, 1860, P. L. 382.
    A public officer cannot be convicted of failing to pay over public moneys on proper demand as provided by the Act of March 31, 1860, sec. 65, P. L. 382, until an actual and not a constructive demand has been made by the proper officer or person authorized to demand and receive the money. Until such demand is made no offense has been committed. The statute of limitations began to run, therefore, only from the date of the demand.

      Criminal law — Pleading—Former acquittal — Public officers.

    On a demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to he entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom.
    The true test to ascertain whether the plea autrefois acquit be a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on'the first.
    Where a public officer has been convicted of failing to pay over public moneys after demand made upon him, and the ^conviction has been reversed by the Supreme Court on the ground that no proper demand was or could have been made upon the defendant pending the determination in a civil proceeding of his right to hold the money, such a reversal cannot be pleaded as a former acquittal to a subsequent indictment for failing to pay over moneys, where it appears that the civil proceedings were concluded against the defendant, and that a demand was made thereafter by the proper officer.
    Argued Dec. 4, 1905.
    Appeal, No. 211, Oct. T., 1905, by defendant, from judgment of Q. S. Schuylkill Co., Sept.

      March 12, 1906:
    Term, 1905, No. 905, on verdict of guilty in case of Commonwealth v. John T. Shoener.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for embezzlement.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1) in overruling demurrer; (2-4) various instructions ; (5) in overruling defendant’s plea of autrefois acquit.

      Wm. Wilhelm and James B. Reilly, with them Jos. W. Moyer, for appellant.

      C. E. Berger, district attorney, and Guy E. Farquhar, with them John F. Whalen, for appellee,
    cited: Com. v. Mentzer, 162 Pa. 646.
   Opinion by

Porter, J.,

The first specification alleges that the court below erred “ in overruling the third paragraph of defendant’s demurrer, which paragraph is as follows: That the offense charged in said indictment is barred by the statute of limitations, the same having been found more than two years after the moneys, alleged to have been received by the defendant the which he failed to pay over, came into his hands.” The indictment charged in apt language that the defendant had been duly elected and qualified as cleric of the court of quarter sessions of the peace for the county of Schuylkill, and exercised the duties, powers, rights and privileges of said office from the first Monday of January, 1900, until January 5, 1908 ; and that he had by virtue of his office collected and received from applicants for license to sell liquor in said county fees amounting to the sum of $7,234.28 .and upwards; for and in the name of and on account of the county of Schuylkill, for safe-keeping and transfer to the treasurer of the said county of Schuylkill; and that F. J. Noonan, the treasurer of said county of Schuylkill, did on June 30,1905, demand and require him, the said John T. Shoener, to pay over to him, the said treasurer, the said sum of money and the said John T. Shoener did unlawfully fail to pay over the said sum unto the said-treasurer when thereunto lawfully required, by said treasurer, he the said F. J. Noonan being the proper officer authorized to demand and receive the same.

'The indictment was drawn under the provisions of the 65th section of the Act of March 31, 1860, P. L., 382 which provides that: “ If any state, county, township or municipal officer .... shall convert to his own use, in any way whatsoever, or shall use, by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other officer or person authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor.” The present Chief Justice construed this section of the statute in Commonwealth v. Mentzer, 162 Pa. 646, and there said: “ The section clearly specifies four distinct and separate acts with reference to public money, which shall constitute the offense of embezzlement, to wit: conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, or failing to pay over on proper demand. These are clearly enumerated in the disjunctive, and it is further declared that ‘ every such act ’ shall be deemed and adjudged an embezzement. Each of these acts, therefore, though of very varying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense. Prima facie, therefore, each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count. But .... where .... two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offense.” This indictment charged the defendant with only one of the acts by the statute made a misdemeanor; -the failure to pay over the money when thereunto legally required by the county treasurer, the proper officer authorized to demand and receive the same. This statute did not make it a misdemeanor for a county officer to fail to pay over public money as soon as he received it, nor as soon as it became his official duty to -pay it over, under its provisions it is only after the official who has collected the money has been legally required to pay by the county treasurer or other proper officer or person authorized to demand and receive the same, t'liat a failure to make the payment becomes a misdemeanor. That a demand must be made before this offense can be committed; that the demand must be an actual one, and that no constructive demand will meet the requirements of this statute has been definitely settled by the decision of the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527. This indictment averred that the demand by the treasurer was made on June 30, 1905. If the other averments of the indictment were true the defendant was still civilly liable to the county for the money, and the treasurer had the lawful right to make the demand; had the defendant then paid the money he would never, so far as the averments of this indictment are concerned, have been guilty of the offense with which he is now charged. It was only his failure to pay when the demand was made upon him that brought him within the operation of this statute; the right of the commonwealth to prosecute then arose, and from the date of the demand the statute of limitations began to run. The first specification of error is dismissed.

The defendant raised in various forms the question as to when the statute of limitations, as to this offense, began to run, by his first, second, third and fourth written requests for instructions to the jury. These points presented but one question in different forms, and by them the court was requested to instruct the jury; that the Act of March 31, 1876, P. L. 13, made it the official duty of the defendant to pay into the county treasury on the first Monday of each month during his term and the first Monday of the month next after the expiration of his term all fees received by him during the preceding month, and that the defendant was required by law to pay the $7,243.28 mentioned in the indictment into the county treasury on the first Monday of January, 1903, and if the jury found that he had .failed to do so, “ the offense of failure to pay over under this indictment was then complete,” and it immediately became the duty of the county treasurer to demand payment of said money, and the commonwealth was bound to bring the indictment within two years from the time when the county treasurer could have so legally demanded payment of said money; that the failure of the treasurer to make the demand could not stop the running of the statute of limitations, and that the indictment not having been found within two years the verdict must be not guilty. The fourth point added “ that any agreement or stipulation entered into between the county of Schuylkill and the defendant for the purpose of legally determining the legal ownership of said money or any part thereof in a civil proceeding in the courts of the state did not arrest the running of the statute in favor of the defendant, but the statute became a bar to this indictment in two years after the first Monday of January, 1908, when defendant’s term of office expired and he failed to pay over.” The defendant was not indicted under the provisions of the act of 1876. It cannot be seriously contended that the act of 1876 repealed the 65th section of the act of March 31, 1860. The third section of the act first mentioned does, it is true, provide penalties for violation of some of its provisions, but it expressly provides that such penalties shall be “in addition to the other penalties for such offenses.” We must, for the reason so clearly stated by Mr. Justice Brown, in Commonwealth v. Shoener, 212 Pa. 527, hold that in order to complete and render liable to indictment the crime with which this defendant stands charged, there must be an actual demand made upon him by a proper officer, and “ a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand.” The offense had no existence until after a lawful demand, within the meaning of the statute, was made, and from the date of that demand the statute of limitations began to run. Had the defendant produced evidence that some officer having authority to do so had, at a time when the defendant was legally liable to have such demand made upon him, actually demanded that the defendant pay the money to the county treasurer, that evidence would have raised a question of fact as to the time when the first regular and lawful demand was made and the statute of limitations would begin to run from that date. No such evidence was offered. The question attempted to be raised by the fourth point was not involved in this case; the agreement referred to did not arrest the running of the statute of limitations after it had once commenced to. run, but that agreement having been made before the defendant had received the money involved in this proceeding, he had the right from the moment he received it to hold it until the question of the ownership of the fees was determined by the final judgment of the Supreme Court, and it was not until after that final judicial determination that the county treasurer had any right to demand payment of the money. This was expressly ruled in Commonwealth v. Shoener, 212 Pa. 527.

The fifth and sixth specifications of error may be properly considered together. The defendant interposed a special plea in bar, setting forth at length the record of the proceedings in the case of the Commonwealth v. John T. Shoener, No. 75, March Term, 1903, of the court of quarter sessions of the county of Schuylkill, and the review thereof- by the Supreme Court of Pennsylvania on appeal to No. 286, January Term, 1904, reported 212 Pa. 527, and upon the record so pleaded prayed judgment of the court if he ought to be put further to answer the present indictment. The commonwealth demurred to the plea, and the court sustained the demurrer, which ruling is the subject of the fifth specification of error. The defendant then entered a general plea of autrefois acquit and nob g'uilty. The only evidence offered under the plea of autrefois acquit was the same record which had been specially pleaded in bar, there being no dispute that the defendant was the person charged in the former indictment; and upon that issue the jury, under the instructions of the court, rendered a verdict in favor of the commonwealth. The instruction of the court in directing the jury to find for the commonwealth on that issue is the subject of the sixth specification of error. On demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom: Murphy v. Richards, 5 W. & S. 279; Heikes v. Commonwealth, 26 Pa. 513. The record pleaded in bar showed a prosecution for embezzlement commenced on January 3, 1903, an indictment found on November 14, 1903, containing thirteen counts, a trial which resulted in the acquittal of the defendant on the first, second, third, fifth, sixth, seventh, ninth, tenth, eleventh and thirteenth counts, and a verdict of guilty on the fourth, eighth and twelfth counts, a judgment of the court of quarter sessions upon the eighth and twelfth counts and a reversal of that judgment, and discharge of the defendant from his recognizance by the Supreme Court. Upon the trial of the issue formed by the record pleaded in bar the burden was upon the commonwealth to prove that prior to the commencement of that prosecution a proper officer had made demand upon the defendant that he pay to the county treasurer money which, at the time the demand was made, it was the legal duty of the defendant to so pay, and that the defendant had failed to pay upon such demand. No evidence of a demand made after the finding of that former indictment would, upon the trial thereof, have been admissible. In the present indictment it was necessary for the commonwealth to prove that there had been a demand made by the county treasurer on June 30, 1905, that the defendant pay, to said treasurer, money belonging to the county at that time in the hands of the defendant and which the treasurer at that time had the lawful right to require him to pay. The true test to ascertain whether the plea of autrefois acquit be a good bar is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on the first: Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555; Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588; Commonwealth v. Montross, 8 Pa. Superior Ct. 237; Commonwealth v. Hazlett, 14 Pa. Superior Ct. 352, and 16 Pa. Superior Ct. 534; Hilands v. Commonwealth, 114 Pa. 372. The plea averred the offenses to have been the same, hut the effect of this was to change the record, and the record must stand: Commonwealth v. Trimmer, 84 Pa. 65.

There was no error in the judgment of the court upon the demurrer to the special plea in bar. The instruction of the court to the jury to find for the commonwealth upon the issue raised by the defendant’s plea of autrefois acquit might be sustained upon the same grounds alone, but as the facts, although absolutely undisputed, are somewhat involved it may be well to briefly state them. The defendant offered in evidence the record of the indictment and proceedings thereunder against him above referred to, and iii immediate connection therewith the record of the case of the county of Schuylkill v. John T. Shoener, No. 61, January Term, 1902, of the court of common pleas of Schuylkill county; No. 6, January Term, 1903, of the Supreme Court of Pennsylvania, and especially the'agreement in the nature of a case stated between the county and Shoener, included in the latter record. These two records, taken together, establish all the facts considered by the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527.

The verdict of the jury at the former trial, found the defendant not guilty upon ten counts of the indictment and guilty upon three counts. The verdict as to the counts upon which the defendant was acquitted established that he had not prior to that time converted the money to his own use, or invested it in property or merchandise. These are offenses distinct from the mere failure to pay over on proper demand, and the acquittal as to them would not shield the defendant against the present prosecution: Commonwealth v. Mentzer, 162 Pa. 646. The three counts upon which the defendant was found guilty were the fourth, eighth and twelfth. The fourth count charged him with failure to pay over upon demand the moneys received by him as license fees on January 7, 1901; the eighth count charged a like offense with regard to moneys received on January 6, 1902, and the twelfth count charged him with a failure to pay on demand moneys received by him on January 5, 1903; the failure to pay over on demand the money received by the defendant for license fees in the month of December in each year of his term, as shown by his report filed on the first Monday of January following, being laid in a separate count. The court of quarter sessions did not sentence the defendant upon the fourth count of the indictment, which charged the failure to pay over the fees received in January, 1901. The court did sentence the defendant on the eighth and twelfth counts, which, respectively, charged the failure to pay over on demand the fees included in his official reports for January, 1902, and January, 1903. That judgment was reversed by the Supreme Court, without a new venire: Coromonwealth v. Shoener, 212 Pa. 527; for the reason that because of the then pending civil proceeding and the agreement in the case stated to which the county and the defendant were parties the defendant had the right to retain all these license fees ; that they did not become payable to the county and neither the county nor any of its officers had a right to demand that the defendant should pay them to the county treasurer, until after the question of the ownership of the fees had been determined by the Supreme Court, which final determination was not had until May 4, 1903, in the decision reported in Schuylkill County v. Shoener, 205 Pa. 592. In reversing the judgment of this court and of the court of quarter sessions the Supreme Court, who spoke by Mr. Justice Brown, in reference to the failure of the defendant to pay said: “ In refusing to comply with the notice to pay he was standing on his right not to do so until it was determined that the county was entitled to receive the'money.”

The record offered in evidence did not show an adjudication that the defendant had not received the money, nor that having received it he had paid it over. It did show an adjudication by the court of last resort that the defendant had the right to retain this money and could not legally be required to pay it over until May 4, 1903. The agreement in the nature of a case stated, which was thus conclusively determined to vest in the defendant the right to retain these fees until the question of their ownership was determined by the Supreme Court, was made, executed and filed of record in the court of common pleas of Schuylkill county on November 21, 1901. The fees involved in the present indictment were not received hy the defendant until after that date, a part of them within two months and the remaining portion over a year after the agreement had been filed of record. The agreement was in force at the time the defendant received the fees. There never was a time when a lawful demand could have been made upon the defendant to pay these fees, until after the question of their ownership was determined by the Supreme Court on May 4, 1903. This was distinctly held with regard to the twelfth count of the indictment in the former proceedings, which distinctly charged the receipt of the fees to have been in January, 1903, and which was supported by evidence that the money was actually received by the defendant in December, 1902, and that he acknowledged said receipt in his official return on the first Monday of January, 1903.

The defendant had received the money in question by virtue of his office; when the question of its ownership was determined by the decision of the Supreme Court on May 4, 1903, it became his duty to pay the money to the county treasurer, but his failure to pay it did not, under the provisions of the 65th section of the act of March 31, 1860, become criminal until after the county treasurer had made demand. When the treasurer did make such demand, the offense was complete. The instruction of the court below to the jury to render a verdict in favor of the commonwealth upon the issue raised by the plea of autrefois acquit was, under the records and evidence presented, correct: Solliday v. Commonwealth, 28 Pa. 13, and the cases hereinbefore cited. In this view of the case we do not deem it necessary to consider the question of the constitutionality of the Act of June 12, 1878, P. L. 196, section 6, nor whether the period of limitation of prosecutions in cases of this, character is by that statute extended to four years. All the assignments of error are dismissed.

The judgment is affirmed, and it is ordered that the defendant appear in the court of quarter sessions of Schuylkill county and by that court be committed until such part of the sentence as had not been performed when this appeal was made a supersedeas, be complied with.