text:
    Sharpless, Appellant, v. Willauer.

      Equity — Bight of way — Interference with easement.

    1. A bill in equity will lie to restrain a defendant from using and occupying as a private lawn, a strip of ground alleged to be a street to the use of which the plaintiff is entitled as a way appurtenant to his land; but the bill will be dismissed on demurrer if it fails to aver the facts which make the plaintiff’s right clear.
    2. In such a case a mere averment that the strip had at one time been a public street is insufficient, if it appears that it had been vacated as a street, and there is no averment that any person either bought or sold a lot of ground calling for the street as a boundary during the time the street was a public highway.
    3. Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestee of the transaction.
    Argued Nov. 17, 1908.
    Appeal, No. 15, Oct. T., 1908, by plaintiff, from decree of C. P. Chester Co., No. 482, In Equity, dismissing bill in equity in case of Philip Sharpless v. Arthur E. Willauer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction to restraining the closing of an alleged private street. Before Hemphill, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in sustaining the demurrer and dismissing the bill.

      John G. Johnson, with him Thomas 8. Butler, for appellant.—
    It is immaterial to the rights of a lot owner in a plan of lots, how many lots have been sold and whether or not the streets appear on the maps of the municipality or are adopted as public streets, or are vacated: Garvey v. Refractories Co., 213 Pa. 177; Carroll v. Asbury, 28 Pa. Superior Ct. 354; Twibill v. Railway Cos., 3 Pa. Superior Ct. 487; Held v. McBride, 3 Pa. Superior Ct. 155; Manbeck v. Jones, 190 Pa. 171.
    It is a recognized principle of law that where a street called for as a boundary in a deed is not a public street the grantee acquires an easement or right of way over the land designated as a private street: Van Meter v. Hankinson, 6 Wharton, 307; Twibill v. Railway Cos., 3 Pa. Superior Ct. 487; Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1; Kirkham v. Sharp, 1 Wharton, 323; Cope v. Grant, 7 Pa. 488.

      Alfred P. Reid, for appellee. —
    The vacation of Elizabeth street by the court of quarter sessions in 1880, was an abandonment by the public of all rights of the public in the street, under the deed of dedication.
    Express dedication of a road to public use by deed, must be accepted; if not, it is of no validity: In Re Alley in Pittsburg, 104 Pa. 622; Pa. R. R. Co. v. St. Ry. Co., 176 Pa. 559; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Royce, 152 Pa. 88; Washington Female Seminary v. Washington Boro., 18 Pa. Superior Ct. 555.
    This street never having been opened to or used by the public, since 1880, more than twenty-one years before the filing of this bill, the public have no rights therein: Quicksall v. Phila., 177 Pa. 301; Woodward v. Pittsburg, 194 Pa. 193; Black v. Pittsburg, etc., St. Ry. Co., 34 Pa. Superior Ct. 416.
    The language in the appellant’s deed was not a dedication of the street to public use. The doctrine of dedication has no application to a use that the public cannot enjoy: Pearsall v. Post, 20 Wendell, 111; Cobb v. Davenport, 33 N. J. L. 223; Thomas v. Ford, 63 Md. 346.
    The appellant, by his deed, acquired no rights in Elizabeth street, except to use the same along the line of the land conveyed to him, between Walnut and Matlack streets, for access to his lot: Bellinger v. Union Burial-Ground Society, 10 Pa. 135; Brooklyn St., 118 Pa. 640; Cannon v. Boyd, 73 Pa. 179; Manbeck v. Jones, 190 Pa. 171.
    April 12, 1909:
    Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant and the surroundings of the property and the other res gestse of the transaction: Fitzell v. Phila., 211 Pa. 1; Union Burial-Ground Society v. Robinson, 5 Wharton, 18; Cox v. Freedley, 33 Pa. 124; Neely v. Phila., 212 Pa. 551.
    The distinctive feature of the cases where an easement was held to have been acquired in other streets than those contiguous to the lot sold, is, that there was some reference in the deed to a plot or plan of lots made by the grantor by which he sold: Schuchman v. Homestead Boro., 111 Pa. 48; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; Ermentrout v. Stitzell, 170 Pa. 540; Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Ferguson's App., 117 Pa. 426; Patterson v. Gas Co., 172 Pa. 554; Fereday v. Mankedick, 172 Pa. 535; Quicksall v. Philadelphia, 177 Pa. 301; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Richardson v. McKeesport, 18 Pa. Superior Ct. 199; Deppen v. Bogar, 7 Pa. Superior Ct. 434.
   Opinion by

Porter, J.,

The plaintiff seeks by this bill in equity to restrain the defendant from using and occupying as a private lawn or for any private purpose any part of a strip of ground sixty feet wide extending from High street to Walnut street, in the borough of West Chester, averring that the said strip of land was a street, called Elizabeth street, to the use of which the plaintiff was entitled as a way appurtenant to a piece of land owned by him located in said borough and bounded by Ashbridge street, Walnut street, Matlach street and said Elizabeth street. The defendant demurred to the bill, and the court below sustained the demurrer. The question is whether the bill avers facts which clearly entitle the appellant to the use of Elizabeth street, between Walnut street and High street, as a way appurtenant to his land, situate between Walnut street and Matlach street.

There is a remedy at law for interference with an easement of the character here asserted, but where the right is clear and the facts are undisputed the party injured may be entitled to equitable relief, for in such a case there is no necessity for first resorting to an action at law in order to establish the right. The bill in such a case must, however, sufficiently aver the facts which make the right clear. The bill in this case failed in this particular, and if the facts averred, and nothing more, had been proved, the appellant would not have been entitled to the relief for which he prayed.

The bill averred that Anna Mary Warrington and others had by deed dated January 13,1875, granted and conveyed to the borough of West Chester “for the exclusive purpose of streets and highways for the accommodation of the public and that of the inhabitants of said borough and for no other use and purpose whatsoever, ” certain strips or pieces of land forming streets or avenues; “amongst others so conveyed was a strip of land sixty feet in width, beginning in High Street about seven hundred and eighty-four feet north of Marshall Street and extending parallel with said Marshall street to Franklin street being known as Elizabeth Street.” That said Elizabeth street was laid out and opened as a public street or highway by the court of quarter sessions of Chester county, in April, 1875, and that the said street was vacated, as a public street or highway, by proceedings in the said court in October, 1880. That about the year 1876 or 1877, being during the time the said street was a • public highway, Anna Mary Warrington caused the said Elizabeth street to be graded and shade trees to be planted along the same. The bill does not aver that Mrs. Warrington and the other owners of land who joined in the deed to the borough, dedicating the land to public use as a highway, had among themselves entered into any deeds or covenants by force of which the respective owners and those who subsequently derived title from them would acquire any right to use the strips of land in question as ways appurtenant to their respective holdings. This deed was a tender of the strip of ground to the public for the exclusive purpose of a public highway; the action of the public authorities in laying out and opening the street as thus dedicated was an acceptance of the dedication, and the subsequent vacation of the street was a renunciation of all the public right in the land. The street was a public highway from 1875 to 1880. When in 1880 the street was vacated all the rights of the public therein ceased, and the owners of the fee took the land discharged of the easement. The bill contains no averment that any person either bought or sold a lot of ground calling for this street as a boundary during the time the street was such a public highway. The mere fact that this strip of ground was at one time a public highway can, therefore, have no weight in determining the question whether this appellant subsequently became entitled to the private right to use the strip of ground as a way appurtenant to his lot. The dedication and opening of the street as a public highway might become material in fixing the location of the street, if the bill sufficiently averred facts which would entitle the plaintiff to use the strip of ground as a way appurtenant to his lot, under some right of private contract, or grant.

The averments of the bill as to what occurred after the street was vacated are meagre and may be briefly stated. Mrs. Warrington, on May 13, 1885, appeared before the borough council of West Chester and asked the said council to adopt and record the plan of the Warrington Extension; a plan was made by order of the burgess and council and the same was surveyed by Francis Lightfoot, the borough surveyor, the bill does not aver that this plan was adopted or approved by either Mrs. Warrington or the borough authorities. Mrs. Warrington by deed dated May 15, 1896, conveyed to the plaintiff “ all that lot of land situate on Walnut Street between Ashbridge Street and a private street called Elizabeth Street, in said borough of West Chester, bounded on the west by said Walnut Street, on the north by said Ashbridge Street, on the east by Matlach Street and on the south by said Elizabeth Street.” This deed did not refer to “Warrington Extension” or any plan of lots subdividing the property of the grantor. Mrs, Warrington by deed dated April 14, 1902, almost six years after the plaintiff had acquired title to his land, conveyed to Mamie S. Eyre a piece of land, situate in the borough of West Chester, “bounded, and described according to a plan of lots known as the Warring-ton Extension of the town plan of West Chester, attached hereto as follows: Bounded on the north by Ashbridge Street, on the west by High Street, on the south by Elizabeth Street and on the east by Walnut Street.” These are the only acts of or conveyances by Mrs. Warrington averred in the bill, and from these alone the plaintiff contends an implied covenant arises which entitles him to the use of that part of Elizabeth street in question as a way appurtenant to his land. The bill does sufficiently aver that Mrs. Warrington owned the strip of ground in question, or at least forty out of the sixty feet in width, and had power, at the time she executed the deed to this plaintiff, to subject it to the easement for which the plaintiff contends.

The averment as to the application of Mrs. Warrington to the borough council and the action of the council in having a survey made and a plan thereof, if true, does not establish that Mrs. Warrington or the borough authorities had adopted the plan and that the land of the owner had been subdivided into lots and streets. The deed under which the plaintiff acquired his title does not refer to any plan of lots. That deed clearly distinguishes between Elizabeth street and the other streets which constituted the boundaries of the lot, for while all the other boundaries are referred to as streets, Elizabeth street is designated as “a private street.” It is not necessary to determine what right the plaintiff acquired in that part of Elizabeth street between Matlach street and Walnut street, upon which his lot directly abutted; his right to the use of that part of the street is not questioned. He is here asserting a right to use a part of Elizabeth street in a square other than that in which his lot is located.

The deed from Mrs. Warrington to Mamie S. Eyre, executed six years after the plaintiff had acquired title to his lot, was undoubtedly effective to vest in the grantee and her successors in title the right to use Elizabeth street as located on the plan of “Warrington Extension,” as a way appurtenant to the land which passed under the grant. The right so passing under that grant was a matter of private contract between the parties to the deed, implied from the terms of the conveyance. That deed did not, however, vest in this appellant any right to use Elizabeth street as a way appurtenant to the lot which he then owned and which did not pass under the Eyre grant: Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1. The other deeds which appellant has printed in his paper-book, which were not recited’ in the bill and not thereto attached as exhibits/ cannot be considered in determining the sufficiency of the averments of the bill.

The bill did not aver that Mrs. Warrington, at the time she conveyed the lot to plaintiff, had made any plans subdividing her property and locating that part of Elizabeth street in question, nor did it aver that the deed to plaintiff in any manner referred to any plan of subdivision of the Warrington property. The mere fact that no plan had upon paper been made of a subdivision of the property might not be controlling, if such a subdivision had actually been made upon the ground and the street had been there located and the deed to the plaintiff had so described it. The bill does not, however, contain any averment as to the conditions actually existing upon the ground at the time plaintiff acquired title. The bill does not aver that, at the time Mrs. Warrington executed the deed to plaintiff, the part of Elizabeth street in question was actually opened upon the ground, as a way for the use of the land. Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestse of the transaction: Fitzell v. Philadelphia, 211 Pa. 1; Neely v. Philadelphia, 212 Pa. 551. The plaintiff may have the right to use this part of Elizabeth street, as a way appurtenant to his land, but the existence of that right does not clearly appear from the facts averred in the bill.

The decree is affirmed and the appeal dismissed at cost of the appellant.

Morrison and Head, JJ., dissent.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Park v. Park, Appellant.

      Contract — Parent and child — Parol contract as to land — Statute of frauds —Evidence.

    1. In an action of ejectment for a certain timber tract of thirty-two acres, it appeared that the plaintiff claimed the tract under a parol contract with his deceased father, and that the defendant, a brother of the plaintiff, claimed the tract by a deed from the father, subsequent in date to the parol contract. The plaintiff produced a number of witnesses, most of whom as members of the family, were adverse to his right, and these witnesses testified that the plaintiff about the time he graduated from a commercial college, had an offer of a position at a good salary, and that he wished to take it, but that at his father’s request, he gave it up, and went to live with his parents at his father’s farm under an agreement by which he was to have the farm and the timber tract in question as his own property, and that he was to support his father and mother during their lives. There was also proof that the plaintiff went upon the farm, took absolute control of it, including the timber tract, made valuable improvements upon the premises, including a number of new constructions, and that he had paid the taxes which, after he had taken possession, were assessed in his name. It was also shown that the father had made numerous declarations relating to the parol contract, and to the effect that his son owned the land; and there was proof that he had made a will by which he had devised all the land situate in the township in which the farm and timber tract was situated, to plaintiff. Held, that the evidence was sufficient to support a verdict and judgment in favor of the plaintiff.
    2. In such a case evidence as to the declarations of the father made in the absence of plaintiff fifteen years after the testimony established that a parol agreement had been made and executed by the entry of the plaintiff into possession of the land, and a like period after the father had executed his will in pursuance of the agreement, was properly excluded.
    Argued Nov. 18, 1908.
    Appeal, No. 178, Oct. T., 1908, by defendant, from judgment of C. P. Bradford Co., May T., 1907, No. 82, on verdict for plaintiff in case of Mercur Park v. Sumner E. Park.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for thirty-two acres of land in Litchfield township. Before Fanning, P. J.
    The facts are stated in the opinion of the Superior Court.

      April 19,1909:

      L. T. Hoyt, of Hoyt & Schrier, for appellant,
    cited: Wright v. Nulton, 219 Pa. 253; McClure v. McClure, 1 Pa. 374; Gangwer v. Fry, 17 Pa. 491; McKowen v. McDonald, 43 Pa. 441; Moyer’s App., 105 Pa. 432; Detrick v. Sharrar, 95 Pa. 521; Wack v. Sorber, 2 Whart. 387.

      William Maxwell and I. McPherson, with them A. L. Laws, for appellee,
    cited: Shroyer v. Smith, 204 Pa. 310; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Wright v. Nulton, 219 Pa. 253.
   Opinion by

Porter, J.,

This action of ejectment was instituted in the court below under an amicable agreement of the parties, in pursuance of which Mercur Park was made the plaintiff in the issue and Sumner E. Park the defendant. Both parties to the record claimed title to the premises in dispute under Benjamin Park, their father.

The plaintiff, Mercur Park, claimed the premises by virtue of an alleged parol contract entered into between himself and his father before or about the year 1889, by the terms of which the plaintiff, who had just completed his education at a business college at Elmira, New York, and had been offered a desirable situation paying a good salary in the city of New York, was to decline the offer of that position and give up the idea of entering upon business life and return to the farm in Bradford county owned by his father, upon which his parents then resided, and work and manage the farm and take care of his parents so long as they lived; in consideration of which his father agreed to give him the entire farm, including a timber tract of thirty-two acres, which was distant about eighty rods from the main tract, separated by intervening land; the timber tract being specifically mentioned in the agreement, which provided that the plaintiff should take hold and enjoy all the land which his father had in Litchfield township, Bradford county, Pennsylvania. The plaintiff alleged that in pursuance of said contract he declined to accept the position in New York, abandoned the idea of engaging in commercial pursuits, removed to the farm where his parents then resided and at once took complete and absolute possession thereof, exercising all the rights of sole and absolute ownership, and fully and faithfully complied with all the stipulations of his contract, during the lifetime of his parents, his mother having died in 1903 and his father, Benjamin Park, in 1905. The defendant claimed title under a deed from his father, Benjamin Park, dated August 4,1904, conveying to him eight acres, being one-fourth of the timber lot above mentioned. The defendant resisted the right of the plaintiff to recover upon the ground that the evidence produced by the plaintiff was insufficient to warrant the submission to the jury of the question of the existence of the contract between Benjamin Park and his son Mercur and the fulfillment of its terms by the latter. These questions were by the learned judge of the court below submitted to the jury in a clear and adequate charge, the verdict being in favor of the plaintiff, and upon that verdict judgment was entered. The defendant appeals. The specifications of error raise but one serious question: was the evidence, if believed by the jury, sufficient to establish the alleged agreement between Benjamin Park and his son Mercur, and if so, was the contract within the statute of frauds?

The plaintiff called many witnesses whose testimony was direct and clear as to the arrangement which existed between Benjamin Park and his son Mercur with regard to the homestead farm, including the timber lot in question, and what was done by the parties under that agreement. The principal witnesses called by the plaintiff to establish the agreement between himself and his father upon which he relied were his brother, W. D. Park, his sister, Mrs. E. L. Walker and his sister-in-law, Mrs. W. D. Park. These witnesses were not merely disinterested, for if they had any interest it was adverse to the right of the plaintiff. Mr. W. D. Park testified at considerable length, stating that Mercur Park, about the time he graduated from the commercial college at Elmira, had ah offer of a position in New York at a good salary and he wished to take it, that his father insisted upon his declining the position and going to live on the farm and work and handle it, that his father stated that he and his wife were getting old and could not take care of themselves and he had to get somebody to take care of them and look after the farm; that, at that time, he heard his father say to Mercur: “You know this is your’s, and we intend you shall have it and you shall have it; all the land we have got in Litchfield;” that his father “mentioned this timber lot in particular, that that should be his (Mercur’s), that much more than they were going to give to any of the other children; because they expected my brother Mercur to take care of them, and they would be more or less trouble to him and he would have a great deal of care and responsibility, and by their living at home that they would have their living at home; that they would have their living and everything from the farm and they wanted him to look after them and take care of them, and consequently they gave him this timber lot and told him it should be his, and it was his and he had it at that time to use it.” He testified that Mercur agreed to accept this arrangement proposed by his father, declined to accept the situation in New York and went to the farm and lived with his father and mother, taking possession of and absolute control and dominion over the farm, including the timber tract in question; and that Mercur Park had performed his part of the contract faithfully, and had continued in possession of the farm and timber lot, living in the mansion house with his father and mother until the date of his marriage, after which he with his wife lived in another house on the farm; the father and mother continuing to occupy the mansion house until the death of the mother, in 1903, when Mercur and his wife moved into the mansion house and there lived with his father until the death of the latter, in March, 1905, at a very advanced age. This witness further testified that the plaintiff at once took possession of the farm under the agreement between him and his father and that the plaintiff had from time to time made valuable improvements upon the premises, raising the bams and placing walls under them, thus making two basement stables for horses and cattle; that he had very much enlarged one of the barns, that he had built an ice house and creamery and a very good silo, that he had put new roofs on the buildings, built new fences and put the farm into good condition. This witness further testified, that after the arrangement had been made and Mercur had gone into possession of the farm thereunder he had heard his father, Benjamin Park, say in the presence of Mercur, his mother and the wife of the witness, that he, Benjamin Park, had made a will and had “willed his farms around to all of his children just as he wanted them to have them, and that he had given Mercur this farm to do with and handle as his own, .... and Mercur could do with the same as he saw fit; he could improve it and slick it up as much as he had a mind to, and put up as good buildings as he wanted to, and shingle the barns or tear them down, or destroy anything that he had a mind to, only so that he did not interfere with him while he was living there; he had his home and rights there as long as he lived, but Mercur could use the farm as his own.” This testimony was corroborated by that of his wife, Mrs. W. D. Park, by that of Edith Park, Mrs. Mills, William Woodworth and his wife, Mrs. E. L. Walker (who was a sister of both plaintiff and defendant), and several other witnesses; nearly all of whom testified that Benjamin Park had specifically referred to the timber lot as embraced within the terms of the agreement between himself and his son, Mercur Park. Several witnesses testified that, after the arrangement between Benjamin Park and his son Mercur had been made and the latter had in pursuance thereof entered into possession of the farm, parties had attempted to negotiate with Benjamin Park for the purchase of the timber growing upon the lot in question and that he had repeatedly and expressly informed them that he did not own the timber tract, that it belonged to his son Mercur and they would have to deal with Mercur; and Mercur Park did actually, in 1893, enter into a written contract for the sale of all the oak timber standing upon the farm, including the timber tract in question, and the oak timber was under that contract cut off this lot and the parties settled with and paid Mercur Park for the same. It was established as conclusively as anything can be established by oral testimony that shortly after Mercur Park had taken possession of the farm and timber tract, Benjamin Park told those who assessed the land for purposes of taxation that he no longer owned the land, that it was owned by his son, Mercur Park, and he directed them to assess the land accordingly. The land has since 1890 been continuously assessed in the name of Mercur Park.- In addition, to. this testimony, other witnesses were called who testified .to frequent conversations with Benjamin Bark in which he admitted the contract between him and his son and that the son was in possession of all the land under that contract.

If the testimony is believed, the jury was fully warranted in finding that the contract between Benjamin Park and the plaintiff was established in all its terms. The parties were brought face to face, and the evidence disclosed a complete contract made by them. It also authorized the finding that the plaintiff had entered into possession of the land and performed his part of the agreement. It clearly appears, if the witnesses are credible, that Benjamin Park had frequently admitted making the contract with his son and that in pursuance thereof had made a will devising the land to the plaintiff. This testimony is supplemented by a paper in evidence, purporting to be the last will of Benjamin Park, dated September 3, 1889, in which he devises "to my son Mercur Park, subject to the dower interest of my wife therein, and also subject to the life estate of my wife in the dwelling house in which I now reside, all lands situate in the Town of Litchfield, Bradford County, State of Pennsylvania, of which I now own or shall die seized. I also give and bequeath to my said son all my stock and farming utensils upon the same.” This paper was in proper form as a testamentary disposition of property. The description of the land, viz.: “all lands situate in the Town of Litchfield, Bradford County, State of Pennsylvania, of which I now own,” is the same as that used by the witnesses in their testimony as to what land Benjamin Park said was to pass under the agreement with his son Mercur, and there can be no question that it includes the tract of land here in dispute. We do not agree with counsel for appellant in their contention that the estate in the land devised by that will is different from that provided for by the parol contract. The parties to the parol contract are presumed to have known that Benjamin Park 'could not by will devise the land discharged of the interest of his wife therein, in case she survived him. They are presumed to have known that in case he had, at the time the parol agreement was made, executed a deed for the land in which his wife did not join, the wife would be entitled to dower in case she survived her husband. The oral agreement to which the witnesses testified made express provision for the right of Benjamin Park and his wife to reside in the mansion house and have their living off the farm, so long as they survived. This will, therefore, devised to Mercur Park precisely the same estate in the land, subject to the same charge, that he would have acquired if his father had, at the time the parol agreement was made, executed a deed embodying the terms of the parol agreement, in which deed the wife of Benjamin Park did not join. The will is, therefore, in entire harmony with the parol contract. This was accompanied by testimony, believed by the jury, that the will was made pursuant to and in conformity with the terms of the contract. This case bears a striking similarity to and is ruled by Shroyer v. Smith, 204 Pa. 310, in which Mr. Justice Mestrezat used this language: “The will, therefore, became a writing embracing the terms of the agreement, and satisfied the statute of frauds: Brinker v. Brinker, 7 Pa. 53; Smith v. Tuit, 127 Pa. 341.”

Evidence as to the declarations of Benjamin Park, made in the absence of Mercur Park fifteen years after the testimony established that the parol agreement had been made and executed by the entry of the plaintiff into possession of the land and a like period after Benjamin Park had executed his will in pursuance of the agreement, was properly excluded; McLaughlin v. McLaughlin, 91 Pa. 462; Parry v. Parry, 130 Pa. 94; Wilson v. Anderson, 186 Pa. 531; Baldwin v. Stier, 191 Pa. 432.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Wiener to use v. American Insurance Company of Boston, Appellant.

      Foreign attachment — Foreign corporation — Debt.
    A nonresident of Pennsylvania in a suit in this state against another nonresident, may issue a foreign attachment and summon as garnishee a foreign corporation registered in this state and owing a debt to the defendant.
    Argued Oct. 8, 1908.
    Appeal. No. 93, Oct. T., 1908, by defendants, from order of C. P. No. 2, Phila. Co., Nov. T., 1909, No. 23, making absolute rule for judgment on answer of garnishee in case of Louis Wiener to use of J. R. Pringle v. The American Insurance Company of Boston and New Hampshire Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment on answers of garnishee.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment.

      Francis S. Lewis, with him Edward F. Pugh and John F. Lewis, for appellants. —
    A careful consideration of the nature of the proceedings by foreign attachment as it exists in Pennsylvania would seem to sustain the contention that the attachment in this case bound nothing in the hands of the garnishee. The character of the action is in the nature of a proceeding in rem, and, therefore, unless the res was, in contemplation of law, within the jurisdiction of the court out of which the writ issued, it could not be reached by the writ: Datz v. Chambers, 3 Pa, Dist. Rep. 353.
    The mere fact that the New Hampshire Fire Insurance Company, the garnishee, had a registered agent in Pennsylvania, so as to comply with the law permitting it to do business there, did give it a domicile in Pennsylvania, but its residence is still exclusively in the state of its creation: Barr v. King, 96 Pa. 485; Chase v. Ninth Nat. Bank, 56 Pa. 355; Beal v. Toby Valley Supply Co., 2 Pa. Dist. Rep. 671; Pain’s Pyro-Spectacle Co. v. Lincoln Park & Steamboat Co., 5 Pa. Dist. Rep. 474; Pierce v. Electric Company, 28 W. N. C. 311; Diener v. Wopsononock Hotel Co., 10 Pa. Dist. Rep. 57; Shaw v. Mining Co., 145 U. S. 444 (12 Sup. Ct. Repr. 935); Reimers v. Seatco Manufacturing Co., 70 Fed. Repr. 573; Childs v. Digby, 24 Pa. 23; Penna. R. R. Co. v. Pennock, 51 Pa. 244; Glenny v. Boyd, 26 Pa. Superior Ct. 380; Noble v. Thompson Oil Co., 79 Pa. 354; Jaffray’s App., 101 Pa. 583; Brock v. Brock, 1 Pa. C. C. Rep. 232.
    April 12,1909:
    The point here contended for is sustained by a large number of well-considered cases, in both the federal and the state courts: Central Trust Co. of New York v. Chattanooga R. & C. R. Co., 68 Fed. Repr. 685; Reimers et al. v. Seatco Mfg. Co., 70 Fed. Repr. 573; Douglass v. Ins. Co., 138 N. Y. 209 (33 N. E. Repr. 938); R. R. Co. v. Maggard, 39 Pac. Repr. 985.

      Theodore F. Jenkins, with him G. Heide Norris, for appellee.—
    A debt due to a nonresident is liable to foreign attachment when the debtor is within reach of our process: Furness v. Smith, 30 Pa. 520; Barr v. King, 96 Pa. 485; Morgan v. Neville, 74 Pa. 52; Datz v. Chambers, 3 Pa. Dist. Rep. 353; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468 (32 Atl. Repr. 663); Chicago, etc., Ry. Co. v. Sturm, 174 U. S. 710 (19 Sup. Ct. Repr. 797); Harris v. Balk, 198 U. S. 215 (25 Sup. Ct. Repr. 625); Penna. R. R. Co. v. Pennock, 51 Pa. 244; Louisville, etc., R. R. Co. v. Deer, 200 U. S. 176 (26 Sup. Ct. Repr. 207); Poor v. Colburn, 57 Pa. 415; Bank v. Trainer, 209 Pa. 387; Brewing Co. v. Canavan, 221 Pa. 366.
   Opinion by

Rice, P. J.,

The questions for decision in this case arise upon the following-facts the statement of which we take from the paper-book of appellant’s counsel. Certain policies of insurance were issued in California to Louis Wiener, a resident of that state, by the American Fire Insurance Company, defendant, insuring property in San Francisco. A loss having occurred, a writ of foreign attachment was issued out of the court of common pleas of Philadelphia county, and the New Hampshire company served as garnishee. The defendant is a Massachusetts corporation, and has no agent or property in Pennsylvania. The garnishee is a New Hampshire corporation registered in Pennsylvania, having a local agent at Philadelphia. The defendant appeared and filed an affidavit of defense, and judgment was entered against it for want of a sufficient affidavit. Interrogatories were served upon the garnishee, which made answer, denying that it had any money or property of the defendant in Pennsylvania, but admitting’ that under certain contracts of reinsurance made in New Hampshire, there was due by the garnishee to the defendant the sum of $758.09 as the garnishee’s proportion of certain reinsured losses which had been disbursed by the defendant. A rule was entered by the plaintiff against the garnishee for judgment for the sum admitted to be due in the answers, which rule was made absolute by the court. From this judgment of the court the present appeal was taken.

We shall not stop to discuss the question whether the general appearance by the defendant and its submission to the judgment against it for want of a sufficient affidavit of defense affect the scope of the attachment. We are of opinion that irrespective of this action of the defendant the judgment now before us for review was right.

The fact that the plaintiff is a nonresident of this commonwealth, and the further fact that the residence of the garnishee, although having complied with the law permitting it to do business therein and having a registered agent upon whom process can be served, is nevertheless in the state of its creation, do not of themselves constitute a valid objection to the proceeding. As to the right of a nonresident plaintiff to maintain foreign attachment no authority need be cited, and as to his right to summon as garnishee a foreign corporation which is qualified to do business in this state by having complied with the statutory regulations, it is enough to refer to Barr v. King, 96 Pa. 485, wherein the court decided the exact point and in the course of the discussion said: “Natural and artificial persons, citizens of other states, who are doing business here, ought to stand on an equal footing with each other and with the citizens of this state. A natural person who is a citizen of another state, on coming within the jurisdiction of our courts is liable to all actions as if resident in this state; and legislation has done much to place foreign corporations on equality with domestic as respects the rights to sue and the liability to be sued. No reason exists why a foreign corporation engaged in business here should be exempt from attachment process. It is a proceeding against the garnishee personally for the' value of the thing attached when the thing itself is not produced. If a debt be attached it compels payment to the creditor of him to whom the garnishee is indebted. The object is to appropriate the debtor’s assets to payment of his debts, and this object ought to be favored.”

But, it is argued, the action of foreign attachment is in the nature of a proceeding in rem, and, therefore, unless the res is, in contemplation of law, within the jurisdiction of the court out of which the writ issued, it cannot be reached by the writ. Upon this subject it was said in Christmas v. Biddle, 13 Pa. 223, “ The attachment process is a proceeding in rem, and the matter and thing attached must be in the power and jurisdiction of the court.” In the later case of Childs v. Digby, 24 Pa. 23, the court, while conceding that the attachment process is a proceeding in rem, held it to be equally true that it is something more: “It is also a proceeding against the garnishee personally, for the. purpose of compelling him to answer for the value where the thing itself is not produced.” Accordingly it was held in that case that all that is requisite to sustain proceedings in foreign attachment against a garnishee, is that he be within the jurisdiction of the court when the writ was served, and that the property attached be in the possession of himself or agent, though the goods be within a foreign jurisdiction at the time the writ was issued. This case was doubted in Pennsylvania R. R. v. Pennock, 51 Pa. 244, and the doctrine stated as follows: “The party being beyond the reach of process and his property within, is the foundation for the attachment process. But if neither be within the reach of process, it is evident no appearance can be attained. There is nothing on which process can operate, and there is an end of the attachment writ, if one be issued, as there would be to suit commenced by summons when the party is not to be found,” In that case, however, tangible property was involved, and a perusal of the opinion will show that the reasoning of the decision is based on that fact. Here we have to do with the attachment of a debt, which is incapable of manual seizure, and for the enforcement of which the creditor is not bound to go to its own domicile or the domicile of its debtor, but which he may enforce by action in this state. We do not dispute the proposition that a debt may have a conventional situs for certain purposes, either at the domicile of the debtor or of the creditor, or at the place where it is payable, depending upon a variety of considerations. But here it is manifestly immaterial where the debt was created, and it is not asserted that it could not be sued for either in the domicile of the debtor, or in the original domicile of the creditor, or in this state where the latter is doing business and has an agent upon whom process can be served. To say that foreign attachment will not lie here because this intangible thing, the debtor’s obligation to pay, had a conventional situs for some purposes in another jurisdiction, is not, in our judgment, based upon any express provision of the statute or any apparent principle necessary to be implied in order to confine the proceeding within the purpose of the enactment. By reason of the similarity of the provisions of the act of 1836 relating to attachment execution to the provisions of the act of the same year relating to foreign attachment, the case of Fithian v. N. Y. & E. R. R. Co., 31 Pa. 114, goes far to sustain this conclusion, if it does not positively rule the question before us. The subject was quite elaborately reviewed in Harris v. Balk, 198 U. S. 215, where the facts were as follows: A citizen of North Carolina who owed money to another citizen of that state, was, while temporarily in Maryland, garnisheed by the creditor of the man to whom he owed the money. Judgment was duly entered according to Maryland practice, and paid. Thereafter the garnishee was sued in North Carolina by the original creditor and set up the garnishee judgment and payment, but the North Carolina courts held that as the situs of the debt was in North Carolina the Maryland judgment was not a bar and awarded jugdment against him. It was held that this was error, and that as under the laws of Maryland the garnishee could have been sued by his creditor in the courts of that state he was subject to garnishee process if found and served in the state, even though only there temporarily, no matter where the situs of the debt was originally. The discussion by the court is so pertinent to this case that we quote therefrom at some length as follows: “Attachment is a creature of local law. If there be a law of the state providing for the attachment of the debt, then if the garnishee be found in that state and process be served personally upon him therein, we think the court thereby acquires jurisdiction over him and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be served by his creditor in that state. Power over the person of the garnishee confers jurisdiction on the cpurts of the state where the writ is issued.” Then, after speaking of the immateriality of the expression “situs of the debt” when used in connection with attachment proceedings, the court said: “The obligation of the debtor to pay his debts clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign state when therein sued upon his obligation by his creditor as he was in the state where the debt was contracted. ... It is nothing but the obligation to pay which is garnisheed or attached. This obligation can be enforced by the courts of a foreign state after personal service of process therein just as well as by the courts of the domicile of the debtor.” The question under discussion has been the subject of diversity of opinion in the courts of other states, as is shown by the cases cited in the appellant’s brief. Many of these cases bearing upon it are reviewed in National Fire Insurance Co. v. Chambers, 53 N. J. Eq. 468. That case was connected with the decision in Datz v. Chambers, 3 Pa. Dist. Rep. 353, decided by common pleas No. 2 of Philadelphia county, and the decision is in accordance with the view there taken and heretofore indicated. We cannot see that an extended review of these cases by us would serve any good purpose. Our conclusion is that the court had jurisdiction of the subject of the attachment, and that judgment was properly entered on the garnishee’s answers.

The judgment is affirmed.


author: Morrison, J.,

text:
    Decker v. Lackawanna & Wyoming Valley Railroad Company, Appellant.

      Railroads — Carriers—Passengers—False arrest — Conductor.
    1. In an action by a passenger against a railroad company to recover damages for false arrest, there is no case for the jury where the evidence shows that a conductor of a passenger train of defendant telephoned to the dispatcher at the terminal ahead, that he had a disorderly crowd aboard, that he was informed by the dispatcher that the police would be at the terminal station, but were not to arrest anyone for anything that occurred on the train, that the police were so instructed, that the conductor when he alighted from the train at the terminal was asked by an officer to point out the crowd that had been disorderly, that the conductor did as requested, and that in consequence the plaintiff was arrested.
    2. In such a case the company is not liable because the evidence did not show that the conductor actually participated in, or caused the arrest of the plaintiff; but even if it should be conceded that the conductor caused the arrest still the company was not liable, because the conductor acted beyond the scope of his authority.
    Argued March 3, 1909.
    Appeal, No. 10, March T., 1909, by defendant, from judgment of C. P. Lackawanna Co., May T., 1906, No. 851, on verdict for plaintiff in case of Harry P. Decker v. Lackawanna & Wyoming Valley Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for false arrest. Before New-comb, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $191.80.

      Error assigned among others was in refusing binding instructions for defendant.

      W. J. Torrey, of Welles & Torrey, for appellant. —
    If a person merely communicates facts to the police and they act on their own responsibility, the defendant is not liable for false arrest; Brown v. Chadsey, 39 Barbour, 253.

      April 12, 1909:
    The conductor acted beyond the scope of his authority: Faust v. Ry. Co., 191 Pa. 420; McGilvray v. Ry. Co., 41 N. E. Repr. 116; Towanda Coal Co. v. Heeman, 86 Pa. 418; Cincinnati, etc., Ry. Co. v. Carper, 112 Indiana, 26 (13 N. E. Repr. 122); Lezinsky v. Metropolitan Street Railway Co., 88 Fed. Repr. 437; Laffitte v. New Orleans City, etc., Ry. Co., 12 L. R. A. 337; Cunningham v. Seattle Electric Railroad & Power Co., 28 Pac. Repr. 745; Central Railroad Co. v. Brewer, 27 L. R. A. 63; Grayson v. St. Louis Transit Co., 100 Mo. App. 60 (71 S. W. Repr. 730).

      Edward W. Thayer, with him Charles E. Daniels, for appellee. —
    Taken as a whole, this presents the case of a man telephoning to the police of a disturbance in his house and requesting the presence of an officer, and upon the appearance of the officer and a request for information pointing out the offender. If that is not participation in the arrest, it is difficult to understand how one can participate in an illegal arrest by an officer: Burk v. Howley, 179 Pa. 539; Duggan v. R. R. Co., 159 Pa. 248; Ry. Co. v. Hinds, 53 Pa. 512.
    The conductor was acting within the scope of his employment : McClung v. Dearborne, 134 Pa. 396; Duggan v. R. R. Co., 159 Pa. 248; McFarlan v. R. R. Co., 199 Pa. 408; Schimpf v. Harris, 185 Pa. 46; Gillingham v. R. R. Co., 14 L. A. R. 798; Palmeri v. R. R. Co., 16 L. R. A. 136.
   Opinion by

Morrison, J.,

On May 8, 1906, the plaintiff purchased a ticket at Wilkes-Barre for Scranton and boarded a train of the defendant company for the latter place, which is the terminal of the road. It is alleged that after leaving Wilkes-Barre, the plaintiff and his companions were noisy, offensive and flourishing revolvers. This according to the witnesses of the defendant, though the plaintiff and his witnesses contradicted these averments. When the train arrived at Rocky Glen, which is about fifteen minutes’ ride from Scranton, the conductor left the train and telephoned to Mr. Page, the dispatcher at Scranton, that he had a disorderly crowd aboard, that they were flourishing revolvers and that he wanted instructions what to do under the circumstances. The dispatcher told him to stop at Laurel Junction, a few hundred yards below the Scranton station, for instructions, when he arrived there. The conductor then boarded his train and proceded to Laurel Junction. In the meantime, Page, the dispatcher, telephoned to Mr. Murray, the trainmaster, who instructed Page to telephone the police to be on hand when the car arrived to prevent any disturbance there, but not to arrest the crowd for anything they had done on the train. Mr. Page caused notice of this fact to be given to the conductor at Laurel Junction. Mr. Page also called up the police station and requested the police to be present when the train arrived at Scranton. When the train drew into the Scranton station, the passengers all alighted and the trip was apparently over and the conductor started into the station to deliver his tickets, when he was met by a police officer who asked him where the men were who had caused the disturbance. He pointed out the crowd who were still at the station and had not yet reached the street. The officer then walked over to them and halted them. Under conflicting evidence, the jury found that the plaintiff was then arrested for disorderly conduct on the defendant’s train and carrying concealed weapons. This was an arrest for something not happening in the presence of the police officer. The plaintiff, with his companions, were led into the waiting room of defendant’s station by the police officers, where a controversy ensued and as a result the plaintiff and his companions were taken to the police station. The following morning the plaintiff was arraigned in the police court where he had a hearing and was duly convicted and fined for being drunk, disorderly and carrying concealed weapons. We understand it to be conceded that this conviction and sentence thereon had not been reversed at the time of the trial of this case. The plaintiff contended that he was not drunk and disorderly on the train nor at the station. This suit was brought to recover damages from the defendant corporation for a false arrest on the theory that it was brought about by the action of the conductor of the train. The learned court submitted the case to the jury in a fair and impartial charge, if the evidence warranted submitting it to them at all.

In our opinion, the pivotal questions for consideration are two, viz.: 1. Was there sufficient evidence in the case from which the conclusion can be reasonably drawn that the defendant’s conductor actively participated in the arrest of the plaintiff? 2. If he did, was he at the time acting within the scope of his authority so as to bind the defendant corporation?

The assignments of error raise the questions, 1st, of the refusal of the court to give a binding instruction; 2d, refusal to enter judgment for the defendant on the point reserved, and 3d, refusal to enter judgment for the defendant non obstante veredicto and in entering judgment on the verdict in favor of the plaintiff.

A careful examination of the evidence leads us to the conclusion that the learned court erred in permitting the jury to find that the defendant’s conductor actively participated in or caused the arrest of the plaintiff. The evidence upon this question at most only shows that the conductor inquired from Rocky Glen of his superior officer for instructions as to what he should do about the disorderly crowd; that he was instructed to stop at Laurel Junction, which he did, and received instructions not to arrest the crowd for anything they had done on the train. It further appears clearly that the police were sent to the station at Scranton instructed not to arrest any of the crowd but to preserve order there. Taking the most favorable view of the evidence for the plaintiff, it only shows that the conductor pointed out the plaintiff and his companions on inquiry being made by the police, and we fail to find in the evidence anything indicating that the conductor aided, directed or participated in the arrest of the plaintiff. When the police officers asked him to designate the disorderly crowd it is difficult to see that he could have done any less than he did.

The plaintiff’s declaration alleges that he was arrested at the instigation of and on information received from employees of the defendant company. We do not think the evidence sustains this averment and if we are right in this, then the court ought not to have submitted the case to the jury, because the theory on which the plaintiff recovered was that the conductor instigated the arrest. The undisputed evidence shows that the conductor was instructed not to have the plaintiff arrested for anything that happened on the train and so were the policemen instructed not to arrest any of the crowd for what had happened on the train. In the absence of clear evidence to the contrary, it ought to be presumed that the conductor would not disobey positive instructions from his superior officer. So it ought also to be presumed that the police officers did not disobey instructions and arrest the plaintiff for something happening on the train and which they did not see or hear. The theory of the defendant at the trial was that the plaintiff was arrested for what took place at the Scranton station in the presence of the police. Now the fact that the plaintiff was taken by the police, without a warrant, before the magistrate and convicted and fined for being drunk, disorderly and carrying concealed weapons, very strongly supports the defendant's contention that the arrest was not made for what happened on the train and that it was not instigated by the conductor.

But if we are wrong in this view and the conductor did instigate the arrest for what happened on the train, was he at the time acting within the scope of his authority so as to bind the defendant corporation? The evidence clearly shows that the train had arrived at the Scranton station and the passengers had all alighted and the conductor had left his train before he pointed out the plaintiff as one of the disorderly persons. It is difficult for us to see on what theory the defendant is to be bound by what the conductor did by way of identifying the plaintiff to the policemen, after he had finished his trip and had left his train. It is a conceded fact that the yard and trains and railroad property were not in the charge of the conductor after he had completed his trip. But in addition to the fact that the conductor, at the time he pointed out the plaintiff, was not acting within the scope of his authority, we have the uncontradicted evidence that he had been notified by his superior officer not to cause the arrest of the plaintiff for anything that had happened on the train. It may be true that while acting within the apparent scope of his authority, such an instruction, if disobeyed by the conductor, would not relieve the defendant from the consequences of his unlawful act. But when a conductor has brought his train to the station and has seen his passengers all alight and leave the train and he himself has left it, we do not think he was acting within the scope of his authority, even if he did instigate the plaintiff’s arrest.

“The authority of a conductor ordinarily extends to the control of the movements of his train and to the immediate direction of the movements of the employees engaged in operating the train. He is to a great extent the representative of the company in such dealings as it may be necessary for the passengers to have with it while en route:” 1 Elliott on Railroads, p. 424, sec. 302.

In Faust v. Ry. Co., 191 Pa. 420, Judge Endlich, who tried the case in the court below and was affirmed by the Supreme Court, said: “ But where a servant, though at the time engaged in his master’s service, does such an act, which he was not employed to do, which is not in the line of his duty, nor within the scope of his employment, the master is not responsible: Towanda Coal Co. v. Heeman, 86 Pa. 418. Hence it is plain that a servant may, at the same time, be acting, in respect of the matters committed to his charge, as his master’s servant, with the effect of making the master liable for his negligence, and in respect of matters not connected with his charge, as not his master’s servant, with the effect of creating, so far as these are concerned, no liability on the part of his master.”

In Towanda Coal Co. v. Heeman, 86 Pa. 418 , it was held as stated in the syllabus: “Where there was no evidence that the servant was acting in the line of his duty and within the scope of his employment, it was error to submit to the jury the question whether his wrongful act was or was not done in the exercise of a duly delegated authority.” Upon this question see Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241, and authorities therein cited.

In the case of McGilvray v. West End St. Ry. Co., 41 N. E. Repr. 116 (Mass., 1895), the facts were not unlike those in the present case. A passenger had taken a street car and had paid his fare, and the street car, instead of proceeding on its way to take the passenger to his destination, stopped at a car barn; the conductor left his car and the passenger (plaintiff) demurred because the car did not proceed on its way. With one foot on the step of the car barn and one on the street, the plaintiff irritated the conductor by his objections until the conductor assaulted him. He sued the defendant company for damages for assault, and the court granted a nonsuit, on- the theory that the conductor was not acting within the scope of his employment.

In Cincinnati, etc., Ry. Co. v. Carper, 112 Ind. 26 (s. c., 2 Am. St. Rep. 114), it was held that a railway company was not liable for the acts of its conductor after he had provided a safe alighting place for the passengers, in the absence of any evidence that he was acting within the scope of his authority. To the same effect are the following: Lezinsky v. Metropolitan St. Ry. Co., 88 Fed. Repr. 437; Lafitte v. New Orleans City & Lake R. Co., 12 L. R. A. 337; Cunningham v. Seattle Elec. R. R., etc., Co., 28 Pac. Repr. 745; Central R. R. Co. v. Brewer, 27 L. R. A. 63; Grayson v. St. Louis Transit Co., 100 Mo. App. 60 (71 S. W. Repr. 730).

The learned court below expressed grave doubt whether the act of the conductor was the act of the defendant company. The court, however, found that there was evidence introduced by the defendant which would justify the verdict of the jury. We do not so understand the evidence. We understand the instructions from the conductor’s superiors to be clear and uncontradicted, that the conductor should not arrest the plaintiff for any misconduct on the train, and the whole evidence on this question is quite persuasive that the plaintiff was arrested for an offense committed in the presence of the police.

The judgment is reversed and judgment is here entered in favor of the defendant non obstante veredicto.


text:
    Jenkins, Appellant, v. Courtright.

      Husband and wife — Judgment—Confession of judgment — Fraud— Amount justly due wife.

    1. If a husband fraudulently confesses a judgment to his wife for more than is justly due her, but she honestly supposes he owes her the amount of the judgment, she may collect the amount justly due her on the judgment.
    2. On an interpleader between a wife and an execution creditor of the defendant in the execution, the law will not presume the existence of a separate estate in the wife, but she must prove her title by evidence which does not admit of a reasonable doubt.
    Argued March 3, 1909.
    Appeal, No. 20, March T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1907, No. 230, on verdict for defendant in case of Elma Jenkins v. A. O. Courtright.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Interpleader to determine the ownership of a horse. Before Carpenter, J.
    The opinion of the Superior Court states the facts.
    The court charged, inter alia, as follows:
    [Now, as I have said before, if he (meaning the husband) owed her $500 he had a right to do this, notwithstanding he may have owed some one else at the time; but if, on the other hand, he did not owe her the $150 which she mentioned, and if that was loaned to him about the holidays of 1906, some five or six months after this judgment was confessed, then the indebtedness at that time was only about $350 and he would have no right to give her a judgment of $500, and the judgment for that reason, if you find that that is the case, would be fraudulent; and they would have no right to proceed upon it and sell this property, and the plaintiff therefore would have no right to recover.] [1]
    [The burden is upon her to show by clear and satisfactory evidence that such was the case; that she earned this money either by sewing or by taking in boarders, or both, and that she loaned it to her husband as she testifies, and if she did, as I have said, she would be entitled to a judgment against him; but, as I stated before, if it was for a larger amount than he owed her, that is, for $150 more, then she would have no right to recover.] [2]
    Defendant presented this point:
    It will be presumed the wife purchased the horses with money belonging to her husband, unless she proves it was with funds belonging entirely and separately to her, and this proof must be very clear and satisfactory, sufficient to expel all adverse presumptions and must expel all reasonable suspicion and be almost beyond a reasonable doubt, and unless she has so proved her title to the satisfaction of the jury, the verdict should be for the defendant. Answer: I will affirm that, with the suggestion that it might be a little overdrawn when it states that it should “expel all reasonable suspicion.” The burden is upon the plaintiff to show her title by clear and satisfactory evidence, but I should not quite like to say that it must be “beyond all suspicion.” [3]
    Verdict and judgment for defendant for $160. Plaintiff appealed.

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

      A. A. Vosburg, with him C. W. Dawson and John J. Owens, Jr., for appellant. —
    It is a well-settled principle of law in this commonwealth that a judgment confessed by a husband for his wife for a sum greater than was due does not of itself vitiate or nullify the judgment as to creditors of the husband: Meckley’s App., 102 Pa. 536; Hawley v. Griffith, 187 Pa. 306; Page v. Suspender Co., 191 Pa. 511; Howard Watch Co. v. Bedillion, 131 Pa. 385; Hauer’s App., 5 W. & S. 473.
    Creditors can attack a judgment collaterally for collusion only: Lewis v. Rogers, 16 Pa. 18; Clark v. Douglass, 62 Pa. 408.
    In order that a married woman may acquire and hold property against the creditors of her husband, she must make it clearly appear that the means of acquisition were her own, independently of her husband: Auble’s Adm. v. Mason, 35 Pa. 261; Duncan v. Sherman, 121 Pa. 520; Smith v. Axe, 14 Pa. C. C. Rep. 532; Tripner v. Abrahams, 47 Pa. 220; Hoar v. Axe, 22 Pa. 381; Sutton v. Guthrie, Mitchell’s App., 188 Pa. 359; Taylor v. Paul, 6 Pa. Superior Ct. 496.
    April 12,1909:

      George Morrow, with him W. N. Leach, for appellee. —
    The wife claimed the personal property as against her husband’s creditors, although his creditors levied upon the horse while in the husband’s possession or at least in the joint possession of the husband and wife, and in this case the property is presumed-to belong to the husband and she must overcome this legal presumption by positive proof: Wilson v. Silkman, 97 Pa. 509; Pier v. Siegel, 107 Pa. 502; Duncan v. Sherman, 121 Pa. 520; Kingsbury v. Davidson, 112 Pa. 380; Taylor v. Paul, 6 Pa. Superior Ct. 496.
    A judgment confessed voluntarily by an insolvent or indebted man for more than is due is prima facie fraudulent: Clark v. Douglass, 62 Pa. 408; Meckley’s App., 102 Pa. 536; Page v. Suspender Co., 191 Pa. 511; Wilson v. Silkman, 97 Pa. 509.
    And if the judgment was fraudulent in part it was void in the whole: Gates v. Johnston, 3 Pa. 52.
    We think the following cases maintain the quantity of proof embodied in the point submitted: Pier v. Siegel, 107 Pa. 502; Taylor v. Paul, 6 Pa. Superior Ct. 496; Billington v. Sweeting, 172 Pa. 161; Tripner v. Abrahams, 47 Pa. 220.
    Almost beyond a reasonable doubt: Eavenson v. Pownall, 182 Pa. 587; Gamber v. Gamber, 18 Pa. 363; Keeney v. Good, 21 Pa. 349; Guernsey v. Froude, 13 Pa. Superior Ct. 405; Earl v. Champion, 65 Pa. 191; Hoar v. Axe, 22 Pa. 381.
   Opinion by

Morrison, J.,

This is an action under the sheriff’s interpleader act between the plaintiff and the defendant, to determine the ownership of property levied upon by the sheriff on an execution in favor of the defendant, issued on a judgment against A. M. Jenkins, husband of Elma Jenkins, plaintiff. Upon said execution the sheriff levied upon a bay mare as the property of A. M. Jenkins. The plaintiff notified the sheriff that the mare was her property and thereupon an issue was directed to try the question of whether or not the plaintiff owned the mare. It was conceded that at one time the mare belonged to A. M. Jenkins, but the plaintiff claimed title under a sale on an execution issued on a judgment which she held against her husband, A. M. Jenkins. The sale to her of the mare in question took place long before the defendant, Courtright, obtained his judgment against A. M. Jenkins.

The learned court below charged the jury that if the plaintiff’s judgment against her husband was for more than was due from the husband to the wife, then the sale was void, without regard to the question of fraudulent intent. The verdict was in favor of the defendant, Courtright, and judgment being entered thereon, the plaintiff appealed.

The learned court flatly charged the jury that if the $500 judgment which the plaintiff obtained against her husband was for $150 more than the husband owed her, at the time the judgment was obtained, then the judgment would be fraudulent and she would have no right to proceed upon it and sell the mare in question, and the plaintiff, therefore, would have no right to recover in this suit. This question is raised by the first and third assignments of error. These assignments must be sustained, as the adjudicated cases are very plain to the effect that a wife having a judgment against her husband for more than he actually owed her may collect so much of it as is honestly due, provided, it was not given for more than was due by agreement or understanding between the husband and wife to defraud the creditors of the husband. The decisions are to the effect that if the husband fraudulently confess a judgment to his wife.for more than is justly due her, but she honestly supposes he owes her the amount of the judgment, she may collect the amount justly due her on the judgment. This has been many times decided.

In Howard Watch Co. v. Bedillion et al., 131 Pa. 385, the Supreme Court, by Mr. Justice Green, approved the following instruction to the jury by the learned court below: “I have said that even if he gave the notes for more than was actually due to his wife, and even if he contemplated a fraud at the time, yet, if his wife took those notes in good faith, honestly believing that these sums were due from her husband to her, she would not be visited by the fraud of her husband; and that really, gentlemen, is the main point in this case: Was his wife acting in good faith when she took these various judgment notes? Did she take them honestly believing that her husband owed her these sums?”

The court below then further charged that she may become a party to a fraud by her carelessness; “that if the judgment notes were in excess of the amount actually due, and she ought to have known it, or there was reasonable ground for her knowing it, she would be visited with the fraud of her husband.” For the latter instruction, the Supreme Court reversed the court below, saying: “We think the jury should have been instructed that if they believed there was full consideration for the 120,000 note, or that there was a mere honest mistake in fixing the amount, the judgment would not be avoided.”

In Moore v. Dunn & Fell, 147 Pa. 359, Arnold, J., who was affirmed by the Supreme Court, said: “An exception, as to partly good and partly bad judgments, must be noticed in cases of judgments, held by married women against their husbands, in which the excessive part will not be attributed to bad faith, but will be presumed to be a mistake, or included in good faith, as was done in Gicker’s Admin’rs v. Martin, 50 Pa. 138; Meckley’s Appeal, 102 Pa. 536; Howard Watch Co. v. Bedillion, 131 Pa. 385.” “There must be fraud, and the creditor must be party to it, to avoid the judgment at the suit of other creditors:” Page v. Suspender Co., 191 Pa. 511. We might add many other citations from the Supreme Court as well as our own court, but it is unnecessary.

In the present case the wife testified positively to the items which she alleged made up the $500 for which the husband confessed the judgment to her. It appears that she first fixed the date of the loan of $150, after the confession of the judgment, but she subsequently went on the stand and corrected this, stating, in substance, that she made a mistake, that in fact the $150 was loaned to the husband before the judgment was confessed. The learned court in his charge failed to call the attention of the jury to this correction and he entirely failed to instruct the jury that if the wife acted honestly and the husband owed her only $350 of the judgment, she would be entitled to recover, and of course if he actually owed her the $500, she was entitled to recover.

The remaining question in the case is raised by the second assignment of error which goes to the quantum of proof required to establish bona fides of the transaction between the husband and the wife. The learned court was asked to instruct the jury that the wife’s proof that she loaned her own money to her husband “must be very clear and satisfactory, sufficient to expel all adverse presumptions, and must expel all reasonable suspicion, and be almost beyond a reasonable doubt, and unless she has so proved her title to the satisfaction of the jury, the verdict should be for the defendant.” Answer: “I will affirm that, with the suggestion that it might be a little overdrawn when it states that it should ‘expel all reasonable suspicion.’ The burden is upon the plaintiff to show her title by clear and satisfactory evidence, but I should not quite like to say it must be beyond all suspicion.” We think there is no error in the answer to said point. In Eavenson v. Pownall, 182 Pa. 587, it was held that in such a case the law will not presume the existence of her separate estate, but she must prove her title by evidence which does not admit of a reasonable doubt. See Taylor v. Paul, 6 Pa. Superior Ct. 496; Earl et al. v. Champion, 65 Pa. 191.

What we have said sustains the first and third assignments, and the judgment is therefore reversed with a new venire.


text:
    Harrisburg v. Forster, Appellant.

      Municipalities — Sewers—Assessment of damages — Act of May 16,1891, P.L. 75.
    Under the Act of May 16,1891, P. L. 75, the only remedy of an owner who is assessed for benefits to pay the cost of the construction of a sewer exclusively, is to file exceptions to report of viewers. He is not entitled to an appeal. If, however, he takes an appeal, and subsequently with the consent of the municipality, and by leave of court an issue is framed between himself and the city, to try the single question of whether or not the owner’s property is benefited by the construction of the sewer, the court commits no error in confining the trial of the issue to the single question specified. If in such a case the jury finds that the owner’s property was benefited three times more than the assessment levied by the viewers, and the city files a remittitur for all of the verdict above the actual cost of the construction, the owner cannot object to a judgment entered for the latter amount.
    Argued March 10, 1909.
    Appeal, No. 5, March T., 1909, by-defendant, from judgment of C. P. Dauphin Co., June T., 1906, No. 515, on verdict for plaintiff in case of City of Harrisburg v. Benjamin L. Forster, Administrator d. b. n. c. t. a. of John Forster, deceased.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue to determine liability of assessments for constructing a sewer. Before Kunkel, P. J.
    Defendant presented the following points:
    1. If the jury believe the testimony of M. B. Cowden, city engineer, the bottom of the sewer is so high above the ground of the defendant, and will not drain it, as it is, because of that fact, and will be of no advantage to the ground of the defendant, unless houses should be erected upon it, then the sewer is not an improvement within the meaning of the act of assembly and the verdict must be for the defendant. Answer: Refused. [1]
    2. If the jury believe the testimony of the plaintiff’s city engineer, a twelve-inch sewer would have been sufficient for the defendant’s properties, and as an eighteen-inch sewer has been laid and is sought to be recovered for in this case, the jury can allow for no more than the cost of a twelve-inch sewer. Answer: Refused. [2]
    3. Under all the evidence in the case the verdict must be in favor of the defendant. Ansiuer: Refused. [3]
    The court charged the jury in part as follows:
    [We say the single question for you to determine is, were the lands of the defendant benefited by the construction of this sewer, and if so, what in dollars and cents is the value of that benefit? If you are not satisfied from the evidence that it was benefited by the construction of this sewer, then you would so find and your verdict would be that it was not benefited and would be in favor of the defendant. But if you are satisfied from the evidence that the defendant’s property was benefited by the construction of this sewer, then you would so find and determine the value of that benefit in dollars and cents.] [4]
    [The city or the plaintiff contends that the land of the defendant was benefited by the construction of the sewer, that its market value was increased or enhanced by the construction of the sewer, — that is the claim made on the part of the plaintiff, — and you heard the witnesses brought here by the city in support of that claim. The witnesses have been presented to you and you have heard their testimony. You have heard the opinions they have given as to the market value of the property of the defendant immediately prior to the construction of the sewer and the market value immediately after, and you are to take that testimony and determine how much weight you may attach to it. You have heard the testimony and you have heard what they have taken into consideration in giving their opinions as to the market value of the property before and after the construction of the sewer, and you will determine, considering that, how far that testimony satisfies you that the sewer has benefited the property by increasing its market value. Some of these witnesses testify that the market value was increased, was enhanced by two and a half, three, four, five, seven and ten dollars per foot front. You will remember that testimony; it has been referred to by the counsel on the one side and on the other, and I have no doubt is fresh in your recollection.] [5]
    April 12,1909:
    Verdict for plaintiff for $3,120, on which judgment was entered for $1,194:15, all above that amount having been remitted.

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

      Levi B. Alricks, with him George R. Barnett and John Hamilton Alricks, for appellant,
    cited: Washington Avenue, 69 Pa. 352; Chamber’s App., 159 Pa. 20; Tourison’s App., 171 Pa. 38; Park Avenue Sewers, 169 Pa. 433; Hammett v. Philadelphia, 65 Pa. 146.

      Daniel S. Seitz, city solicitor, for appellee,
    cited; Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413; Seventh Street Sewer, 35 Pa. Superior Ct. 484.
   Opinion by

Morrison, J.,

In the summer of 1905, the city of Harrisburgh passed an ordinance under and by which a contractor constructed a sewer eighteen inches in diameter in the center of Cameron street, one of the public streets of the city. After the completion of the sewer, the city, in pursuance of the provisions of the Act of May 16,1891, P. L. 75, petitioned the court of common pleas of Dauphin county for the appointment of viewers to ascertain and report to the court the damages sustained and the benefits to the abutting landowners arising from the construction of the sewer. After the report of the viewers had been confirmed nisi, the defendant, without filing any exceptions, appealed to the common pleas from the assessment of benefits against his lands, which abutted on both sides of said street, equal to the cost of the construction of the sewer. After a rule had been obtained to show cause why the appeal should not be stricken from the record, and also a rule to show cause why exceptions should not be filed nunc pro tunc, a written agreement between the parties was signed and filed, withdrawing the rules, and the court, with the consent of the parties, directed an issue to try and determine the amount of the damages and benefits, if any, .that have accrued to the property of the appellant, and the trial to be without further pleadings. In that issue the city of Harrisburgh was b.y agreement made plaintiff and Benjamin L. Forster, Admr., etc., defendant.

The assessment made by .the viewers was only to pay the cost of the construction of the sewer and none o'f the appellant’s property was taken, injured or destroyed, and no assessment was made against the appellant to pay damages for the property taken, injured or destroyed. Therefore, .under the provisions of the act of May 16, 1891, the defendant was not entitled to an appeal: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413.

Again, in Seventh Street Sewer, 35 Pa. Superior Ct. 484, a case on all fours with the present one, we said: “The only remedy of an owner who is assessed for benefits to pay the-cost .of the construction of a sewer, exclusively, is to file exceptions to the report of viewers and thus secure a modification of the assessment in the manner provided by the statute.” We have already seen that -the defendant took an appeal without filing any exceptions in the court below, and thmcase was tried without exceptions upon the record-or-.reasons showing grounds for an appeal. Therefore, the defendant only remained in court, .ex gratia curiie. There was a motion on the record to strike .off his appeal, and it was -only with the consent of the plaintiff’s solicitor and by the grace of the court, that this motion was not .granted.

The learned court saw fit, on the agreement of .the .parties, to grant them an issue to try the question of whether -or not the defendant’s property was benefited by the construction-of the sewer. In charging the jury the learned trial .judge said: “So the question you are called upon to determine .here is,— for there is no claim that any damage was done to the defendant’s property by reason of the construction of this sewer,— the question you are called upon to determine is, whether or not any benefit has accrued to the defendant’s property by reason of the construction of this sewer; that is the sole question and that is the single question that you are to determine, and you are to determine that from the evidence alone.”

In overruling the motion for a new trial the learned president of the court below said: “If the city was attempting to assess the land for a larger sewer than it could legally be made liable for, the objection, it seems to us, should have been raised by excepting to the viewer’s report, or to the whole proceeding, or by making it one of the reasons for the appeal. At least, the point could not be determined on the trial of the question of the amount of benefit or damage accruing to the land by the construction of the particular sewer.”

The case was tried on its merits, and we think the learned trial judge was right in limiting the scope of the hearing to the single question raised by the issue and pleadings upon which the case was tried, to wit: what benefits, if any, accrued to the appellant’s property abutting on the line of the sewer, by reason of the construction thereof. We are disposed to concede to the court below a large discretion in this case as to what was to be tried under the issue granted by him. We will not reverse, under the peculiar facts of this case, because the defendant was not permitted to prove that a smaller sewer would have been sufficient.

The jury found that defendant’s property was benefited three times more than the assessment levied by the board of viewers. The plaintiff filed a remittitur for all of the verdict above the actual cost of the construction of the sewer and obtained judgment for the latter amount. This we think resulted in substantial justice to the parties, and the defendant being in court ex gratia and having elected to try,his case without exceptions or stated ground of appeal, he cannot now be heard to complain of the judgment.

The assignments of error are all dismissed, and the judgment is affirmed.


text:
    De Cou Brothers Company v. Englander, Appellant.

      Practice, C. P. — Pleading—Statement of claim — Sufficiency of statement — Affidavit of defense — Appeals.
    1. If an affidavit of defense does not go to the merits of the plaintiff’s claim, but only to the sufficiency of the statement, allegations of fact which do not appear in the statement, should not, on appeal, be introduced into the defendant’s history of the case and brief of argument. If he deemed it important that they be brought to the notice of the court, he should have put them in his affidavit of defense and sworn to them.
    2. Where a statement of claim alleges that the sum claimed is justly due and payable from the defendant to the plaintiff, the mere omission to aver that it has not been paid, — the statement being sufficient in other particulars to show a good cause of action,' — does not relieve the defendant from the necessity of filing an affidavit of defense in order to prevent judgment.
    3. Where, in an action against a guarantor, the plaintiff’s statement of claim avers that the defendant had admitted to plaintiff’s attorney that'he had in his hands a certain sum of money which the principal delivered to him to be paid to the plaintiff for goods which the latter furnished to the principal under the guaranty agreement, and such averment is not denied in the affidavit of defense, mere technical objections to the statement of claim which might be good, if the plaintiff were suing the defendant as guarantor only, will not be sufficient to prevent judgment.
    Argued Oct. 22, 1908.
    Appeal, No. 136, Oct. T., 1908, by-defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,777, making absolute rule for judgment for want of a sufficient affidavit of defense in case of De Cou Brothers Company v. Samuel Englander.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a guaranty.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      April 19,1909:

      Joseph B. Englander for appellant.

      J. B. Colahan, 3d., for appellees.
   Opinion by

Rice, P. J.,

The affidavit of defense does not go to the merits of the plaintiff’s claim, but only to the sufficiency of the statement. This being so, allegations of fact which do not appear in the statement should not have been introduced into the defendant’s history of the case and brief of argument. If he deemed it important that they be brought to the notice of the court, he should have put them in his affidavit of defense and sworn to them.

We gather the following facts from the statement:

At the time the writing hereafter quoted was executed by the defendant and delivered to the plaintiff, Jennie Levy was an alleged bankrupt, and a receiver had been appointed by the federal court who took charge of her property and caused an inventory to be made of her entire stock of merchandise and all her other assets. She claimed the property under her exemption, and its value as inventoried was $269.

The writing above referred to was signed by the defendant and reads as follows:

“Philadelphia, Pa., August 21, 1907.
“Messrs. De CouBrothers Co.,
“No. 613 Market St., Phila.
“ Gentlemen:

“In pursuance of the arrangement entered into this day between Mr. Moody as receiver of Jennie Levy Estate and Mrs. Levy, whereby she is to be permitted to carry on business pending a settlement between herself and her creditors and in pursuance of which she is to buy additional goods so as to keep the business moving, I hereby guarantee to pay to you such sum or sums not exceeding $150 for bills as the same become due, for goods and merchandise to be delivered by you to her to-day or at any other time hereafter upon her order, the total not exceeding the amount stated.”

In accordance with the agreement entered into between the plaintiff and defendant, and within a week after the date of the paper, the plaintiff sold and delivered to Jennie Levy merchandise to the value of $152.

According to the admission which the defendant made to the plaintiff’s attorney, he has in his hands the sum of $150, delivered to him by Jennie Levy for the purpose of paying the plaintiff, which, notwithstanding his written agreement, he refuses to apply toward payment for the merchandise delivered to her.

Upon this state of facts the plaintiff claimed to recover the sum of $150, which, he alleges, “is justly due and payable” by the defendant to the plaintiff.

If this were an action against Jennie Levy upon a book account, the objection that the copy of the account attached to the statement is defective, in that it does not show what goods were furnished to her, would be well taken: Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171; Leek v. Livingston Manor Mfg. Co., 30 Pa. Superior Ct. 377. But as will be seen later the rule enunciated in those and other cases does not apply to the present, case.

The contention that whether the paper be regarded as creating a guaranty or a suretyship, the undertaking was not a continuing one, is sufficiently answered by referring to the paper itself.

Where a statement of claim alleges that the sum claimed is justly dué and payable from the defendant to the plaintiff, the mere omission to aver that it has not been paid, — the statement being sufficient in other particulars to show a good cause of action, — does not relieve the defendant from the necessity of filing an affidavit of defense in order to prevent judgment.

But the appellant’s counsel argues that the instrument was a guaranty and not a suretyship, and therefore the statement is defective in other material particulars, namely, because it does not aver notice of acceptance of guaranty, because it does not aver that the principal yet owes the money to the plaintiff, or that the plaintiff has not been paid anything on account, and because there is no averment that the principal is in default or is insolvent.

We are not prepared to concede that the word “guarantee” was used in its technical and not its popular sense. The words are “guarantee to pay,” and as Shaeswood, J., points out in Woods v. Sherman, 71 Pa. 100, if we substitute any other word in the paper for the word “guarantee” — as “promise,” “agree” or “undertake” — there can be no doubt that the writing would impart an absolute engagement to pay for the goods. But without deciding the point, and assuming that a technical guaranty was intended, the plaintiff’s case does not rest on that engagement alone. The chief cause of its complaint is that, by his own admission, the defendant has in his hands a certain sum of money which the principal delivered to him to be paid to the plaintiff for the goods which the latter furnished the principal under and pursuant to the defendant’s engagement. What precedes in the statement may properly be regarded as introductory to the principal subject of the pleading and as explaining and elucidating it. Granting then that some of the defendant’s objections to the statement would be good if the plaintiff were suing the defendant as guarantor only, they are not good as against the plaintiff’s claim to recover the money belonging to it which the defendant has in his hands. In the absence of a denial of the alleged admission or of the fact admitted, the court was right in concluding that the technical objections to the statement were not sufficient to prevent judgment.

Judgment affirmed.