author: Morrison, J.,

text:
    Metzgar, Appellant, v. Lycoming Township.

      Practice, C. P. — Nonsuit—Evidence—Striking out evidence.

    1. Where the trial court strikes out a large part of the evidence, and then enters a nonsuit, the appellate court in reviewing the case will consider the evidence as if it had not been stricken off.

      Waters — Road law — Supervisors—Culverts—Natural water course— Negligence — Sewers.
    2. An action will lie against private and municipal corporations and natural persons to recover damages resulting from a negligent or intentional obstruction of a natural stream of water flowing within its own banks.
    3. Where township supervisors obstruct a natural live stream of water which flows across a highway, so that ordinary floods damage an abutting owner’s property as a result of sueh obstruction, without fault of the owner, the latter is entitled to recover damages for the injuries to his land in an action of trespass, based on the negligence of the supervisors.

      4. Th,e rule that no damage can be recovered from a municipality for injuries resulting from a failure of judgment on the part of the officers of the municipality in constructing a sewer to carry off surface water, does not apply to the construction of the culvert or drain to carry a highway over a natural live stream of water.
    Argued Feb. 24, 1909.
    Appeal, No. 18, Feb. T., 1909, by plaintiff, from order of C. P. Lycoming Co., Sept. T., 1907, No. 266, refusing to take off nonsuit in case of Aaron Metzgar v. Lycoming Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Ormerod, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) in striking out the evidence; and (3) in refusing to take off nonsuit.

      James B. Krause, for appellant. —
    There is a distinction between natural streams and surface water as to overflow of water: Rose v. St. Charles, 49 Mo. 509; Pumpelly v. Green Bay Co., 80 U. S. 166; Arimond v. Green Bay, etc., Co., 31 Wis. 316.
    Due care must be taken not to obstruct the natural flow, including that at seasons of either low or usual high water, and the failure to do so will render the offender liable for injuries to landowners caused by the penning back of the waters and the overflow of their lands: Riddle v. Delaware County, 156 Pa. 643; Fick v. Penna. R. R. Co., 157 Pa. 622; Brown v. Pine Creek Ry. Co., 183 Pa. 38; Berninger v. Sunbury, H. & W. R. R. Co., 203 Pa. 516.
    The question is for the jury: Elliott v. Oil City, 129 Pa. 570; Torrey v. Scranton, 133 Pa. 173; Miller v. R. R. Co., 29 Pa. Superior Ct. 515.

      II. W. Whitehead, for appellee. —
    We think the principle of law is well settled that, where culverts were not defectively constructed or left out of repair, the municipality cannot be made responsible for an error in the judgment of the township authorities as to the size said culverts should have been constructed: Fair v. City of Philadelphia, 88 Pa. 300; Collins v. City of Philadelphia, 93 Pa. 272; Bear v. City of Allentown, 148 Pa. 80; Belafeld v. Borough of Verona, 188 Pa. 627; Sullivan v. Pittsburg, 5 Pa. Superior Ct. 357; Pressman v. Borough of Dickson City, 13 Pa. Superior Ct. 236; Lorah v. Amity Township, 35 Pa. Superior Ct. 529; Siegfried v. South Bethlehem Borough, 27 Pa. Superior Ct. 456.
    July 14,1909:
   Opinion by

Morrison, J.,

This was an action of trespass brought by the plaintiff to recover damages which he alleges he sustained because of the overflow of water upon his lands caused by the insufficiency of certain culverts placed across the public highway, thereby causing the water to be dammed up and overflow the road and go down upon his premises, situated on the lower side of the road, destroying his grain and carrying away the surface of the ground.

At the close of the plaintiff's testimony the learned counsel for the defendant moved the court to strike out all the evidence as to the size of the culverts and then followed this with a motion for a compulsory nonsuit. The learned court granted both motions. If he was right in striking out a large portion of the material evidence, it was probably quite safe to grant the compulsory nonsuit. But in determining whether or not the court erred in refusing to take off the nonsuit we are disposed to consider the evidence as if it had not been stricken out. When the court is about to grant a compulsory nonsuit, it would seem well to leave the evidence in the record. This question is raised by the first assignment.

The learned court below granted the nonsuit on the theory that an action in trespass would not lie because of the discretion vested in the supervisors in regard to sewers, drains, etc. The court said:

“This being an action of trespass, if there was no negligence on the part of the defendant supervisors, there could be no recovery, and it is not alleged that they were guilty of any negligence in the maintenance of the culverts placed by them.

“That the evidence. showed conclusively that there was a great reduction in the size of the culverts must be conceded, but admitting that to be true, can it be said that the reduction, if too great, was more than an error of judgment on the part of the supervisors?

“It is well settled in Pennsylvania that a municipality is not liable for damages resulting from the errors of judgment on the part of the officers of the municipality.”

The evidence would warrant the jury in finding that several of the streams of water which flowed through the culverts across the highway were live, natural streams, and that at least one of them, Hamilton’s Run, was quite an important stream flowing between well-defined banks and passing across the highway through an opening of thirty-two square feet. This bridge was replaced by a thirty-six inch iron pipe having a capacity of about seven square feet, being reduced to nearly one-fifth of the size of the former opening for the stream to pass through. The important question for consideration is whether the learned court below was right in holding that it makes no difference whether the water to be taken care of comes through natural, live streams, flowing across the land and highway, or from what is known as surface water, caused by rains and the melting of snow.

The first case cited and relied on by the appellee is Fair v. City of Phila., 88 Pa. 309. The syllabus of this case is as follows: “The mere omission of municipal authorities, to provide adequate means to carry off the water which storms and the natural formation of the ground throw on a city lot, will not sustain an action by the owner thereof, against the municipality for damages arising from the accumulation of water on said lot by reason of the construction of a sewer, that was not of sufficient size to carry off the surface drainage.

“Where the sewers were not defectively constructed or left out of repair, the municipality cannot be made responsible for an error in the judgment of the city authorities, as to the size a sewer should have been constructed.” But that case clearly refers to surface water and it is not controlling as to natural streams of water. That a municipality is not liable in trespass for an error of judgment of the supervisors in planning a system of sewers for draining the streets is established by that case and many others. That case is cited and considered in Torrey v. City of Scranton, 133 Pa. 173, where it was held as stated in the syllabus: “A municipal corporation,' diverting the flow of surface water so that it accumulates and flows upon abutting property, where it would not flow naturally, is liable to the abutting owner in damages for the resulting injuries.”

The learned court below and the counsel for the appellee rely with apparent confidence upon Collins v. City of Phila., 93 Pa. 272. In that case the syllabus shows what was decided. The Supreme Court in a very brief opinion held that the facts brought that case and Fair v. Phila., 88 Pa. 309, within the same rule, saying: “We can discover no material difference between that case and those [referring to the cases before the court] upon which a distinction can be based. Whether the natural drainage be by a creek or by the surface — it was in both cases obstructed by the insufficient provision made by the defendant to supply its place. There was no negligence, but want of judgment, and the municipality cannot be made liable in damages for the mistake which may be committed by its officers in the honest, fair exercise of their duties.”

We think the learned court below failed to note that the cases here referred to by the Supreme Court arose under an exercise of discretionary power conferred upon the municipality by an act of the legislature authorizing the building of a sewer along the bed of a creek, of sufficient capacity to carry off its waters. The legislature did not attempt to define the size or quality of the sewer nor the manner of its construction, but left that all to the discretion of the municipal authorities. Therefore, it is plain why the Supreme Court considerered Fair v. Phila., 88 Pa. 309, and Collins v. Phila., 93 Pa. 272, as resting upon the same principle. But we do not understand the text-writers and the decisions of our Supreme Court to accord to municipal officers the same discretionary control over natural, live streams of water that they have over artificial sewers and drains constructed to take care of surface water. We will consider this question further along.

Bealafeld v. Borough of Verona, 188 Pa. 627, is cited and relied upon by the court below in refusing to take off the non-suit. The syllabus of that case is: “A municipality in constructing a sewer exercises a judicial' discretion, and is not responsible for an error of judgment in furnishing a sewer inadequate for the purpose contemplated. Fair v. Phila., 88 Pa. 309, followed.” But that case referred to a sewer constructed to take care of surface water, and it is not controlling in regard to a natural stream of water like Hamilton’s Run in the present case. Bear v. City of Allentown, 148 Pa. 80, is also cited. But that was a case of alleged error in judgment in the construction of a sewer to take care of surface water, and it was held that an action of trespass would not lie for an error of judgment in the construction of the sewer. That case does not touch the question of a sewer or a drain constructed to control a natural stream of water flowing within its own banks.'

Sullivan v. Pittsburg, 5 Pa. Superior Ct. 357, is also cited and relied upon, but that case refers to drains and sewers constructed to take care of surface water and it is not controlling as to natural streams. The same may be said as to Pressman v. Dickson City Borough, 13 Pa. Superior Ct. 236. The learned court also cited and relied on our late case of Lorah v. Amity Twp., 35 Pa. Superior Ct. 529, but we do not regard that case as ruling the question of obstruction of a natural stream of water.

We have already indicated that in our opinion municipalities, as well as individuals and corporations, in erecting bridges or culverts over live or natural streams of water, must take into consideration the surrounding circumstances and the apparent needs, and take care not to obstruct the flow of the water even in the case of ordinary floods. We know of no legislative authority granting special immunity to townships in this regard; so far as we can discover, they stand on the same footing as an individual or private corporation, each being liable for damages that may ensue from the erection of an inadequate culvert or opening made to carry a natural live stream of water under a highway. If such culvert, even though well constructed, is manifestly too small and the ordinary flow of water will not pass through it, but dams up and overflows the highway and injures private property, the municipality will be liable to respond in damages. We believe the law to be in Pennsylvania as stated in 2 Dillon on Municipal Corporations, 1316: “In this connection may be considered the liability of municipal corporations for injuries to private property in consequence of being overflowed with water caused by improvements made, or work done, upon the streets, under their authority. And here it is important to distinguish between natural streams flowing in channels between defined and actual banks, and surface water, caused by rain or melting snow, for the law relating to them is very different, and the powers of the municipality much greater with respect to the latter than the former. Assuming the stream to be of the former character, and that the municipality is without any valid legislative powers changing what would otherwise be the legal rights of the parties, its authorities under the general power to grade and improve streets, or construct public improvements beneficial to it, cannot deprive others of their property rights in the water course, or injure them by badly constructed and insufficient culverts or passage-ways obstructing the free flow of the water, without being liable therefor.” That learned author calls attention in the very next section to the difference in the rule as to surface water caused by rain and snow, and we understand the law in Pennsylvania to be substantially as stated by him on that subject also.

In 30 Am. & Eng. Ency. of Law, p. 375, it is said: “Where bridges, culverts, etc., are constructed across water courses, by railroad companies, municipalities, or other corporations, or by individuals, due care must be taken not to obstruct the natural flow, including that at seasons of either low or of unusual high water, and the failure to do so will render the offender liable for injuries to landowners caused by the penning back of the waters and the overflow of their lands; but such structures need not be constructed in such a manner as to permit the unobstructed flow of the water course in times of unprecedented and extraordinary freshets.” Many authorities are cited to sustain the above proposition

In Gould on Waters, sec. 260 (3d ed.), it is said: “A city or town which constructs a street across a water course without proper culverts or drains, or which negligently constructs or maintains the bridges or culverts in a highway across a natural stream, so as to cause the water to flow back upon and injure the land of another, is liable to an action of tort to the same extent that any corporation or individual would be liable for doing similar acts. ... It is important to distinguish between natural streams, flowing within defined banks, and surface waters, for the powers of a municipality are much greater with respect to the latter than the former.” The author cites in support of this proposition numerous authorities.

In Woolrych on Waters, p. 279, it is said: “A distinction was taken between a way, or common and a water course, because the former begin by private right or by prescription, or assent; they are particular benefits to take part of the profits of the land, and so upon unity, the greater profit drowns the less; but it was said, that a water course has its origin in neither of the above ways, for it begins ex jure natura, and cannot be averted.”

In 48 American Digest, col. 2198, sec. 30, it is said: “A water course is a stream of water, usually flowing in a certain direction in a regular channel, with bed and banks; though it is not necessary that the water should flow continually, but the channel may sometimes be dry.” See also Black’s Pomeroy on Water Rights, chap. 2, secs. 4-11; Law of Water Courses by Angel, chap. 1, where the distinction between natural water courses and surface or artificial drainage is clearly recognized. Also 2 Farnham on Water and Water Rights, secs. 455, etc., where the distinction between natural and artificial water courses is recognized and considered. The following Pennsylvania cases seem to be in harmony with the above principles: Riddle et al. v. Delaware Co., 156 Pa. 643; Fick v. Penna. R. R. Co., 157 Pa. 622; Brown v. Ry. Co., 183 Pa. 38; Berninger v. Sunbury, etc., Ry. Co., 203 Pa. 516; Chestnut Hill, etc., Turnpike Co. v. Rutter, 4 S. & R. 6; Wheatly v. Baugh, 25 Pa. 528; Gring v. Water Co., 7 Pa. Superior Ct. 63; Craig v. Borough, 7 Pa. Superior Ct. 526; Beech v. Kuder, 15 Pa. Superior Ct. 89; Railway Co. v. Gilleland, 56 Pa. 445; B. & O. Railroad Co. v. School Dist., 96 Pa. 65.

In Riddle v. Delaware Co., 156 Pa. 643, the court below was requested to charge: “That if, in the opinion of the commissioners of Delaware County, the bridge was of sufficient capacity to vent the waters of Chester creek, the defendant is not liable for the damage to the property of the plaintiff by reason of any mistake of the commissioners in not making the bridge of greater capacity.” That point was refused and there was a verdict and judgment for the plaintiff for 114,000, but the Supreme Court affirmed the judgment and expressly held that there was no error in refusing to affirm the above point.

In Rife v. Middletown, 32 Pa. Superior Ct. 68, the question we have been discussing was before the court, but we affirmed the judgment on another ground, saying: “Independently, therefore, of the substitution of the pipes for the open stream, there was a distinct charge of negligence in the manner in which they were cared for. The testimony upon this subject was such as to compel its submission to the jury.”

The learned counsel for the appellee relies on Siegfried v. South Bethlehem Borough, 27 Pa. Superior Ct. 456, but we do not understand that case to commit this court to the doctrine that sewers and natural streams of water rest on the same theory when controlled by municipal authorities. In that case our late Brother Smith, speaking for the court, said: “Its liability is confined to injuries due to interference with the natural flow of water, faulty construction, and failure to maintain the sewer in proper condition, and free from obstructions that materially affect its use; and the rule is the same whether a natural water course is adopted for drainage purposes, or an artificial channel is built.” Numerous authorities are then cited, but if the learned judge meant to convey the idea that no distinction exists between a natural water course and a sewer or artificial drain, the authorities he cited do not sustain that proposition. Among these authorities are Blizzard v. Borough of Danville, 175 Pa. 479; Owens v. Lancaster, 182 Pa., 257.

But Gift v. Reading, 3 Pa. Superior Ct. 359, written by Judge Smith, shows clearly that he recognized the distinction between natural water courses,and sewers and artificial drains. All of the above authorities are in harmony with the common law in regard to natural water courses.

We consider the Pennsylvania cases in harmony with the common-law rule and in support of the doctrine that an action will lie against private and municipal corporations and natural persons to recover damages resulting, from a negligent or intentional obstruction of a.natural stream of water flowing within its own banks.

It has been suggested that our general highway act of 1836 and its supplements confers power on municipal authorities to construct highways across runs, creeks and rivulets. This is true, but we cannot find in the statutes of Pennsylvania any authority empowering municipal officers to obstruct such streams by constructing highways. They must carry the highway over such streams, taking care to leave free and sufficient passageways for the water, even in times of ordinary floods.

In our opinion, the plaintiff presented a case for the jury. If the evidence satisfied that body that the defendant’s supervisors obstructed natural, live streams of water which flowed across the highway so that ordinary floods damaged the plaintiff’s property as a result of such obstruction, without fault of the plaintiff, then he was entitled to recover in his action of trespass, based on the negligence of the said supervisors.

We sustain the first and third assignments of error, and reverse the judgment with a procedendo.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Weber, Appellant, v. Roland.

      Judgment — Opening judgment — Petition—Demurrer—Fraud.
    1. A petition to open a judgment is not demurrable if it alleges failure of consideration, the age, infirmity, and weak-mindedness of the maker, that the maker did not understand the force of it, and that the note was a fraud upon the maker, although the petition does not set forth specific facts showing actual fraud.
    2. An order making absolute a rule to open a judgment will not be reversed, where the opinion of the court below shows such consideration and balancing of the testimony as to raise in the mind of the judge a clear conviction of the importance, if not necessity, of submitting the disputed question involved to a jury; and this is the case although on a subsequent trial of the cause the judge is convinced that the allegation of fraud is not sustained and withholds the consideration of it from the jury.

      Judgment — Opening judgment — Mental weakness — Issue—Consideration — Seal.
    3. On the trial of an issue to determine the validity of a judgment entered upon a note under seal, where the defense is the mental incapacity of the maker and failure of consideration, evidence of the defendant's lack of memory at the time the note was made, her failure to understand business propositions which were propounded to her and other things of like character and particularly her condition after a stroke, is for the jury.
    4. In such a ease the burden is cast upon the representative of the defendant, the maker, to show that the decedent was so weak-minded, arising from her bodily infirmities, that she was unable to understand the effect of the signing of the note, upon which the judgment was entered, and it is incumbent upon the defense to show that her lack of understanding depended entirely upon her weak-mindedness.
    5. In an action upon a bond or note under seal, want of consideration is no defense.
    6. On the trial of an issue to determine the validity of a judgment entered upon a judgment note under seal, where the issue as originally framed involved questions of fraud, undue influence, failure of consideration, and mental incapacity of the maker, and the court and jury eliminate the questions of fraud and undue influence, and the seal eliminates the question as to consideration, the court must confine the consideration of the jury to the question of mental incapacity of the maker arising from her bodily infirmities, and whether her lack of understanding depended entirely upon such mental incapacity.
    7. In such a case it is reversible error for the court to use such language that the jury might infer that, notwithstanding the seal, they could find for the defendant, if nothing passed in the way of actual consideration at the time of the execution of the note,
    Argued Nov. 13, 1907.
    Appeal, No. 44, Oct. T., 1907, by plaintiff, from judgment of C. P. Berks Co., Feb. T., 1901, No. 103, on verdict for defendant in case of William F. Weber, for the use of Sallie A. Roland, v. Emma C. Roland, Executrix of Anna E. Roland, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed-

      Issue to determine the validity of a judgment entered upon a judgment note under seal. Before Endlich, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiif appealed.

      Errors assigned were (1-4) in overruling demurrer to petition and in granting an issue; (5-11) various instructions, the most important of which are quoted in the opinion of the Superior Court.

      Joseph R. Dickinson, for appellant. —
    The petition did not set forth ground for relief: Jenkintown Nat. Bank’s App., 124 Pa. 337; Applebee’s App., 126 Pa. 385; Luther v. Luther, 216 Pa. 1; Wyman’s App., 3 Walker, 410; Nace v. Boyer, 30 Pa. 99; Graham v. Pancoast, 30 Pa. 89; Aiman v. Stout, 42 Pa. 114; Weller’s App., 103 Pa. 594; Cosgrove v. Cummings, 195 Pa. 497; Kraus v. Stein, 173 Pa. 221.
    Upon the rule to open, the appellee failed to establish mental incapacity, fraud, or undue influence, or any other ground for relief: Dean v. Fuller, 40 Pa. 474; Kraus v. Stein, 173 Pa. 221; Cauffman v. Long, 82 Pa. 72; Eddey’s App., 109 Pa. 406; McIntosh v. Condron, 20 Pa. Superior Ct. 118; Aiman v. Stout, 42 Pa. 114; Moorhead v. Scovel, 210 Pa. 446; Worrall’s App., 110 Pa. 349; Dickey v. Norris, 216 Pa. 184; Crothers v. Crothers, 149 Pa. 201.
    The questions of fact to be tried by the issue awarded were not alleged in the petition to open: English v. Hager, 119 Pa. 541; Miller v. Duvall, 123 Pa. 155; Jenkintown Nat. Bank’s App., 124 Pa. 337.
    The evidence at the trial was insufficient to submit to a jury; the court misinstructed the jury as to the meaning of the first question of the issue. Judgment n. o. v. for the plaintiff should have been entered: Rife v. Galbreath, 3 P. & W. 204; Nieman v. Ward, 1 W. & S. 68; Miller v. Wise, 33 Pa. Superior Ct. 589.
    The court vacated and set aside the judgment, in spite of the undisputed evidence showing conclusively that the maker of the note upon which the judgment was entered, was mentally competent, fully understood the nature and character of the transaction, and in the absence of evidence of fraud, undue influence, trick, or imposition of aiiy kind having been exerted in the procuring of the note: Rowand v. Finney, 96 Pa. 192; Wilson v. Wilson, 142 Pa. 572; Reno v. Moss, 120 Pa. 49; Dorris v. Coal Co., 215 Pa. 638; Terra Cotta Co.’s App., 124 Pa. 367; Miller v. Piatt, 33 Pa. Superior Ct. 547; Luther v. Luther, 216 Pa. 1; Knarr v. Elgren, 19 W. N. C. 531; Fisher v. Ry. Co., 185 Pa. 602.
    July 14, 1909:

      Isaac Hiester, with him Spencer B. Roland and D. Nicholas Schaeffer, for appellee.
    ■“ Mere mental weakness not amounting to inability to comprehend a contract .... furnishes no ground for equitable interference:” Graham v. Pancoast, 30 Pa. 89; Aiman v. Stout, 42 Pa. 114; Moorhead v. Scovel, 210 Pa. 446.
    The discretion of the court below in opening the judgment was certainly properly exercised: Jenkintown Nat. Bank’s App., 124 Pa. 337; Cloud v. Maride, 186 Pa. 614; Augustine v. Wolf, 215 Pa. 558; McCullough v. Kinnan, 31 Pa. Superior Ct. 557; Tobacco Co. v. Posluszsy, 31 Pa. Superior Ct. 602.
    The questions framed by the court were exactly in accordance with the allegations of the petition and the denials of the answer: Jenkintown Nat. Bank’s App., 124 Pa. 337.
    The evidence on the trial was even more direct, positive, circumstantial and convincing than upon the rule to open the judgment.
   Opinion by

Beaver, J.,

Upon a bill single under seal, with warrant of attorney to confess judgment, waiving inquisition and exemption laws, a judgment was entered, March 9, 1901, in the court of common pleas of Berks county, in favor of William F. Weber v. Anna Eliza Roland, for $813.75. This judgment was assigned, December 14, 1903, by the plaintiff, to Sallie A. Roland, wife of Fred Roland.

November 21,1905, a petition was filed by Emma C. Roland, executrix of Anna Eliza Roland, praying the court to open the said judgment and allow the petitioner to malje defense thereto, alleging that at the time the said Anna E. Roland signed and delivered said judgment note she was old, infirm and weak-minded and did not understand the import of the judgment note, nor did she receive any consideration for it, and that the same was a fraud upon her.

The plaintiff demurred to the petition. The demurrer was overruled, depositions were taken on both sides, fairly setting forth the facts of the case, and, upon a hearing, the rule to open was made absolute and an issue was awarded to determine three distinct facts as follows:

“1. Was Anna E.' Roland so old, infirm'and weak-minded, when she executed the note for 1775, dated December 8, 1898, to the order of William F. Weber, on which judgment was entered on March 9, 1901, to No. 103, February Term, 1901, J. D., that she did not understand the import of the transaction?

“2. Did she receive full consideration for said note? and “3. Did she sign said note, without any fraud or undue influence having been exercised upon her?”

Upon the trial of the issue, the jury rendered a special verdict, answering the first question in the issue “Yes,” the second question “No” and the third question “Yes.”

In the charge of the trial judge to the jury, as a final summing up, the questions raised by the issue were defined as follows : “You will understand that the first question asks whether Anna E. Roland was so old, infirm and weak-minded as not to have understood the import of the transaction. If you answer that question Yes, then you say that she was infirm and weak-minded to such a degree that she did not understand. If you answer that question No, then you say that she understood what she was doing. You will remember -that the second question is, Did she receive full consideration for said note? If you answer that Yes, you will mean that she did get full consideration for it. If No, you say that she got no consideration for it. .And the third is, Did she sign the said note without any undue influence? I am not- submitting the question of fraud to you at all. If you say Yes to that, you say that the note was not secured by the son in any improper manner. If you say No, then you mean that it was signed under the pressure of undue influence.”

The first four assignments of error relate to the overruling of the plaintiff’s demurrer, the opening of the judgment and the awarding of the issue.

As to the demurrer, we think it was properly overruled. The petition alleges distinctly that the note, upon which the judgment was entered, was a fraud upon the maker, the plain inference from which is that it was obtained by fraud.

It is true that there are no specific allegations of particular facts showing actual fraud stated in the petition tending to sustain this allegation, but taken in connection with the alleged failure of consideration and the age, infirmity and weak-mindedness of the maker of the note, and the further allegation that she did not understand the import of it, it furnished, in our opinion, taken as a whole, sufficient ground for the granting of the rule to show cause.

As to the opening of the judgment, an examination of the opinion of the court making absolute the rule, in which the reasons therefor are fully set forth, shows such consideration and balancing of the testimony as to raise in the mind of the judge a clear conviction of the importance, if not necessity, of submitting the disputed questions involved to a jury, and, therefore, ground for the exercise of the judicial discretion vested in the court. In his opinion, making absolute the rule, Judge Endlich said: “What has been said is, of course, not intended to express any opinion as to the ultimate truth of the matters in controversy, but simply to show that there are substantial questions of fact involved, upon which, as the evidence now stands, a finding by a jury in favor of petitioner would be sustainable. Under the principle declared in Jenkintown Nat. Bank’s App., 124 Pa. 337, 345, reiterated in Klopfer v. Ekis, 155 Pa. 41, 42, explained in Ellis v. Ambler, 11 Pa. Superior Ct. 406, 412, and applied as recently as Produce Co. v. Thomas, 28 Pa. Superior Ct. 293, the 'prudent course’ will be to refer those questions to a jury.” ■

We are not prepared to say that this conclusion was wrong, notwithstanding the fact that, on the trial of the cause, after seeing and hearing the witnesses, the judge was convinced that the allegation of fraud was not sustained and withheld the consideration of it from the jury.

The first, second, third and fourth specifications of error are not sustained.

Upon the trial of the cause, as already shown, the question of fraud was not submitted to the jury, and they answered the third question in the issue submitted to them. “Did she sign said note without any fraud or undue influence having been exercised upon her?” in the affirmative. We have, therefore, the question of fraud eliminated by the court, and that of undue influence, by the jury.

There remain for consideration, therefore, under the numerous assignments of error, practically two questions: (1) Did the testimony warrant the submission to the jury of the other questions which constituted the issue, as awarded? (2) Were these questions properly submitted for their consideration?

As to the first question we are led to the conclusion that the evidence in the case as to both the questions of mental capacity and consideration for the note was inevitably for the jury. The testimony of numerous witnesses, whilst not satisfactory as that of experts as to mental capacity, was, nevertheless, based upon facts in regard to the physical condition of Mrs. Roland, her lack of memory, her failure to understand business propositions which were propounded to her, and other things of like character, and particularly her condition after what was called “the stroke,” and although not overwhelmingly convincing, was, nevertheless, of such a character that it could not be •properly withheld from the consideration of the jury and, if convinced as to this feature of the case, the presumption of a consideration which the seal upon the note imported might be overcome and, if no actual consideration were shown, the answer of the jury would be justified.

This brings us to the last question for consideration — Were the questions of mental incapacity and consideration properly submitted to the jury? The appellant’s ninth assignment of error relates to a portion of the charge of the court to the jury as follows: “First. Was Anna E. Roland so old, infirm and weak-minded, etc.? That question, as all others, will have to be decided by you in the light of all the testimony in this case, and it will come down essentially to this that the question is, Did she understand when she signed this paper that she was giving a judgment that could be enforced against her? Did she understand that what she was signing was something that could be enforced against her upon her property? You notice that this note is dated December 8, 1898, and is payable one day after date. The question for you to determine under all the circumstances is, Did she realize that she was signing a judgment that could be entered up against her and enforced against her twenty-four hours from the time when it was signed? And in the second place, Did she understand that she was giving a judgment which would bind the house she lived in, if entered up? There .is some testimony in this case which tends to show that what she afterwards said concerning this transaction indicated a purpose on her part to give her son something which would enable him to collect the money that he had spent for his father out of some other property that had belonged to the father and at that time was still standing in the names of some of the members of the family and of which she was drawing the rents. Was it her purpose, do you find from the testimony that it was her purpose, her understanding of this transaction, that she was giving her son some security which he could enforce, when those properties were sold, against the proceeds of those properties? Or do you infer from the testimony that she understood that she was giving a judgment which would be a lien upon and collectible out of the house that she owned? I don't know whether she at the time when she gave this note lived in it or not; none of us know that, I suppose. You remember that this transaction is a little peculiar in this respect, that it seems that on December 8, 1898, she signed a note altogether similar to this in which she promised to pay to her son Fred Roland $775, with interest, and containing a waiver of exemption and condemnation, etc. Then some time after that she signed this second note which was dated the same day, December 8, 1898. The original note was not at the time returned to her apparently — at least there is no evidence to that effect. On the contrary, the statement of the plaintiff’s counsel is that until recently that original note was still in their possession. But from the statements •of the witnesses as to what the old lady, Mrs. Roland, said, it might possibly be inferred that she understood — not necessarily that it is a fact that she was told, but that she understood that the original note had been lost and that she was requested to sign another to take the place of it, which was then this note upon which judgment was entered.

“Now, gentlemen, what did she mean when she gave these papers? Did she understand, was she in a condition to understand and did. she in point of fact understand that she was giving a judgment upon her own property, the property on Second street, or did she have an idea that she was giving her son some sort of security by means of which he would be able to recover what he had paid on his father’s account out of the other properties when they should be sold? Of course, it is true that she had joined with her husband some years before in conveying those properties to her sons, if I remember rightly —isn’t that right, Mr. Dickinson?

“ Mr. Dickinson: Two sons.

“The Court: To her two sons. But it is also a fact that the properties were still standing in the names of those sons arid that she was getting the rents from the properties, as I understand the testimony. If you find that she did understand that transaction and that she meant to give a judgment, intended and knew she was giving a judgment, which would bind her own property and which could be collected by process, then you- will answer that first question, No. If, on the other hand, you find that by reason of her age, her infirmity and her weak-mindedness, she did not understand that transaction, then you will answer that first question, Yes.”

Taking this full extract from the charge, together with other parts of it bearing upon the same subject, it appears to us that the court laid a burden upon the plaintiff rather heavier than was warranted by all the facts in the case. It may have been entirely possible that Mrs. Roland did not understand the full import and possible effects of her act in signing the note in controversy, but unless that lack of understanding arose by reason of her weak-mindedness resulting from her age and bodily infirmity, it would not, as we understand it,- destroy its validity. She might have understood that the note was to be payable out of the property of her husband which had been conveyed to the sons or out of a particular property which she herself owned, but if the plaintiff was not responsible for that belief, we cannot see that the validity of the note would be entirely destroyed.

It appeared, upon the cross-examination of the defendant’s witnesses, that decedent, with the knowledge and apparent approbation of her entire family, during the time when, as they testified, she was mentally incapable of transacting or understanding ordinary business affairs, had executed a deed to two of her sons for two separate properties, title to which was in her husband, had assigned her interest as beneficiary in a life insurance policy upon the life of her husband to one son and the daughter who was party to the suit, as executrix, and had made her will, in which the defendant was the principal devisee. It also appeared from the testimony of the defendant’s witnesses, that the decedent had, for a time at least, collected the rents from several properties in which she and her children were interested, that she had stated beforehand that Alderman Weber, who is the legal plaintiff, and her son Fred were to come to see her in regard to the execution of the note in suit, and afterwards that they had been there, and that she had executed a paper or note, the object of which was that.her son Fred should not lose his money — referring to the money which he had advanced during the embarrassment of her husband which greatly concerned and disquieted the entire family. It also appeared that at several times she spoke of the entering of the note at the courthouse, in order that Fred might get his money. It appeared from the testimony of her son Henry, one of the witnesses for the plaintiff, that he had transacted much business for her, in the way of paying bills, during the time when the witnesses for the defendant testified that she was incapable of doing business, that bills for taxes had been sent to her, that she counted out the money for the payment thereof with great exactness and directed him where the bills were to be paid, and in every way indicated a grasp of her business affairs and of the manner in which her business should be transacted. This testimony was of such a character that it seems to us, after a confusing trial, such as this was, where the testimony was contradictory and the witnesses evidently more or less biased, its character should have been called to the attention of the jury, so as to enable them to balance and take into account the testimony on both sides.

In Moorehead v. Scovel, 210 Pa. 446, it was held that, “In the absence of a fraud or undue influence, mere weakness of intellect from sickness or old age is no ground for avoiding a deed. Mental capacity to execute a deed does not include the ability to understand the legal effect which lawyers may impart to the words employed. If the nature and effect of the instrument as a conveyance of property is understood, it is Sufficient.” If there were a sufficient consideration for the note and if the decedent understood the general effect of the transaction in which she took part, and that the note was her own obligation for the payment of a debt which she owed, it does not seem to us that it was essential to the validity of the transaction that she should understand all the various steps which it would be necessary for the plaintiff to take to secure the money which she desired and intended him to have.

The question of the mental capacity of the decedent is the all-important question in the case, for it must govern the question of consideration, if not absolutely at least to a very large extent. The court says in what is assigned for error in the tenth assignment: “The seal attached to this note would, on the face of it, import a consideration passing between the two parties, or rather make it unnecessary to prove the consideration. But there is evidence here which you will have to look at and from which you will determine whether anything passed between these people at all. I don’t know that there is any pretense that money was actually passed between them at the time. It seems to be generally conceded that what this note was given for was something which this son had laid out for the benefit of the father. The father at the time was dead. Whatever indebtedness, by reason of the son’s outlay, there was to the son was an indebtedness on the part of the father’s estate, so far as we have any information in this case — that is to say, up to $500. There is no evidence of anything beyond that in the case, except the note itself. The indebtedness of the father’s estate would not constitute a consideration for the widow’s note for that money. In other words, the debt of the father’s estate is not a consideration to support a note or a promise to pay given by the widow. Therefore, unless the jury could find something else in this case, there would be no consideration for this note, so far as I can remember any part of the evidence. There-is a suggestion here that the note may have been given for natural love and affection. That is not in this case. The question here is, whether there was a full consideration, and the only testimony outside of the seal on the note itself that was given here is the evidence of what the mother herself said about this thing and the fact that the son did spend $500 for the father. So, gentlemen, if you believe the evidence as it stands here, your answer to that question would have to be No.”

This is a practical direction to the jury to find for the defendant upon this branch of the case.

As to the consideration. The petition alleges “nor did she receive any consideration for it.” The issue was framed so that the question for the jury was, “Did she receive full consideration for said note?” in reference to which the court said, “If you answer that Yes, you will mean that she did get full consideration for it.” If No, you say that she got no consideration for it. What is said as to the indebtedness of the father’s estate constituting a consideration is, of course, correct. The debt of the estate of a decedent is not a consideration to support a note or a promise to pay given by the widow. In this case, however, as the court correctly says, the seal imports a consideration, and yet in that connection he says, “but there is evidence here which you will have to look at and from which you will determine whether anything passed between these people at all.” As held in Burkholder’s Executor v. Plank, 69 Pa. 225, “Want of consideration is not a defense to a bond,” and so in Anderson v. Best, 176 Pa. 498. In Cosgrove v. Cummings, 195 Pa. 497, “A seal imports a consideration and creates a legal obligation: in an action upon a bond or note under seal, want of consideration is no defense.” So, if the question of want of consideration were the only question involved here, a verdict might well have been directed for the plaintiff. In McIntosh v. Condron, 20 Pa. Superior Ct. 118, we held that, “ In an action upon a promissory note brought more than six years after its maturity, where the plea of the bar of the statute of limitations has been met by proof of an express waiver of the statute in writing and under seal indorsed on the note, and by an express oral promise to pay the note, and there is no evidence of fraud, imposition or undue influence in securing from the payee the waiver and the promise, and there is no evidence of the payee’s lack of capacity, except that he was old and was subject to fainting spells, the plaintiff is entitled to explicit instructions that the waiver indorsed on the note, if executed under the circumstances detailed by the witnesses, was sufficient in law to remove the bar- of the statute, and to cast on the defendant the burden of proving facts which in law would deprive it of that effect.”

The burden was cast upon the defendant here, therefore, to show that the decedent was so weak-minded, arising from her • bodily infirmities, that she was unable to understand the effect of the signing of the note upon which the judgment was entered, and it is incumbent upon the defendant to show that her lack of understanding depended entirely upon her weak-mindedness. This question, it is true, was left to the jury, but we are not satisfied that the jury might not consider from what was said by the court that, if the decedent did not understand the effect of her signature to the note, she was not bound thereby, instead of making it clear that the lack of understanding must depend upon her lack of mental capacity or her weak-mindedness, caused by her physical infirmities. As to this the testimony was extremely contradictory, and in the absence of that of a physician who attended her at the time of the alleged stroke which is said to have affected her mind, is not convincing, for reasons already stated. It is to be remarked that the defendant, whose testimony was taken upon the rule to show cause, was not called at the trial, and upon objection for that reason both the plaintiff and the husband of the use plaintiff who were present when the note was given were not allowed to testify. We have practically no testimony, therefore, as to what occurred at the time the note was given.

Nor are we satisfied that the jury might not. have inferred from the language of the court as to consideration that, notwithstanding the seal, if nothing passed in the way of actual consideration at the time of the execution of the note, they would be bound to find for the defendant on the second branch of the issue.

The eleventh assignment of error relates to the opinion of the court, discharging the rules for new trial and judgment n. o. v. Although this tends to show the view which the trial judge took of the testimony, it does not afford the basis for revision on our part, as it could not, in the nature of things, influence the verdict, and, unless from it we were led to the conclusion that the case should be reversed and judgment entered for the plaintiff n. o. v., it requires no consideration at our hands.

As already said, we cannot fairly reach the conclusion that the case should have been taken from the jury, and hence we are not ready to say that judgment should have been directed for the plaintiff or entered notwithstanding the verdict.

The ninth and tenth assignments of error are sustained to the extent herein indicated; all others are overruled.

Judgment reversed and a new venire awarded.


text:
    Lehigh Valley Railroad Company, Appellant, v. Frank.

      Railroads — Real estate — Adverse possession — Title.
    1. Title to land purchased by a railroad company for railroad purposes, adjoining its right of wa3q but not actuary occupied by its tracks, may be acquired by twenty-one years’ adverse possession; and it is immaterial that the company may have intended to lay tracks on such land, if in fact such intention was never carried into practical effect.

      2. The purchaser from a trespasser may tack the latter's adverse possession to his own so as to give title by the statute of limitations.
    Argued March 2, 1909.
    Appeal, No. 29, March T., 1909, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1906, No. 18, on verdict for plaintiff in case of The Lehigh Valley Railroad Company v. William Frank.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in the city -of Wilkes-Barre. Before Fuller, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [I repeat, if you find from this testimony that there was such a fence alongside of that property, with a house built as described, dating from a period before 1882, and continuing down to the inception of this suit, then you would be warranted in finding that the defendant had acquired title to that strip, by adverse possession, even although no portion of it was included in his paper title; unless — now we come to another question — -prevented by another consideration, to which I will now call your attention, and I only call it to your attention for the purpose of instructing you to disregard it, because as I view it, it will have no bearing upon your duties. I mention it because it is an important question of law which has been presented here, and upon which it is my duty to instruct you.
    The plaintiff contends that even if defendant’s adverse possession had been such as to give defendant title against the ordinary individual, it is nevertheless unavailing against a railroad corporation, as to land acquired by it for its railroad. It is correct to say, as an abstract proposition of law, that when land is acquired by a railroad corporation, either by purchase- or by condemnation, and is actually used for its railroad, no title can be gained to any portion of what is thus used, by adverse possession, however long it may be continued. That is a correct legal proposition in the abstract. But I do not believe that the proposition is applicable to the facts in evidence here. What are those facts? Why, simply first, a deed to the railroad corporation in 1870 for a certain lot of land, with nothing in the deed to denote the intended use of the land; next, a railroad, two main tracks and a switch built across a portion of the lot (I do not recall, however, any evidence in the case showing when these railroad tracks were built on the lot); next, the remainder of the lot, including the land in dispute, apparently severed in use from the railroad by a well-defined line, fenced above and below, and fenced for more than twenty years, at least, along the line of the portion in dispute and the portion disclaimed; next, the portion in dispute not only separated thus, but separated by a side fence, and built upon, and in the actual occupancy of the defendant and his predecessors; next, a corporate intention, if that has been established by competent evidence, some time, in some way, to use the land for railroad tracks. That is the sum total of the evidence on that proposition, and I say to you as a matter of law the railroad has not established its immunity from adverse possession under the legal principle which it invokes. I may be wrong about that, and if I am the error will be easily subject to correction.] [I]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was above instruction, quoting it.

      J. B. Woodward, of Wheaton, Darling & Woodward, for appellant. —
    A railroad is a public highway, and the land which it covers whether acquired by the exercise of eminent domain or by purchase is not the subject of adverse possession, and is immune from the statute: Reading Co. v. Seip, 30 Pa. Superior Ct. 330.
    When a railroad company condemns land it is of necessity the judge of how much is required for its use. If this question were submitted to a jury in every case, the right of eminent domain would be of little practical value. The company had a right, when it condemned the property, to regard and make provision for its future, as well as its present needs: Pittsburg, Ft. W. & C. Ry. Co. v. Peet, 152 Pa. 488; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511.
    July 14, 1909:
    The nonuser of a portion for present purposes cannot be held to be an abandonment: Hummel v. Cumberland Valley R. R. Co., 175 Pa. 537.

      S. J. Strauss, for appellee. —
    The act of the railroad company in fencing this land out of its right of way is conclusive upon the company.
   Opinion by

Beaver, J.,

The plaintiff sought to recover from the defendant in ejectment a lot of ground fronting on William street in the city of Wilkes-Barre measuring as, the description was amended on the trial, thirty-one and seven tenths feet and running between parrallel lines northwardly to a diagonal line indicated by a fence bounding the plaintiff’s right of way, as used. The defendant disclaimed title for all of said lot, except a strip about six feet in width, upon a portion of which his house was erected, the balance being enclosed by a fence which had been erected by his predecessors in title in or about the year 1868. Plaintiff claimed the land in dispute as part of Lot No. 27 in a plot made by one William Wood, who was the common source of title of both plaintiff and defendant. The defendant claimed for a portion of the strip in dispute as part of Lot No. 28, and for the balance by virtue of adverse possession for more than twenty-one years. The verdict of the jury, under certain questions of fact, submitted to them, the manner of submission not complained of, determined the title to be in the defendant as a part of Lot No. 28, and about three feet as belonging to the plaintiff under his claim of adverse possession. The plaintiff denies the efficacy of the claim of adverse possession which is raised under the charge of the court, as assigned for error, which explains itself and is as follows:

“I repeat, if you find from this testimony that there was such a fence alongside of that property, with a house built as described, dating from a period before 1882, and continuing down to the inception of this suit, then you would be warranted in finding that the defendant had acquired title to that strip by adverse possession, even although no portion of it was included in his paper title; unless — now we come to another question — prevented by another consideration, to which I will now call your attention, and I only call it to your attention for the purpose of instructing you to disregard it, because as I view it, it will have no bearing upon your duties. T mention it because it is an important question of law which has been presented here, and upon which it is my duty to instruct you.

“The plaintiff contends that even if defendant’s adverse possession had been such as to give defendant title against the ordinary individual, it is nevertheless unavailing against a railroad corporation, as to land acquired by it for its railroad. It is correct to say, as an abstract proposition of law, that when land is acquired by a railroad corporation, either by purchase or by condemnation, and is actually used for its railroad, no title can be gained to any portion of what is thus used, by adverse possession, however long it may be continued. That is a correct legal proposition in the abstract. But I do not believe that the proposition is applicable to the facts in evidence here. What are those facts? Why, simply first, a deed to the railroad corporation in 1870 for a certain lot of land, with nothing in the deed to denote the intended use of the land; next, a railroad, two main tracks and a switch built across a portion of the lot (I do not recall, however, any evidence in the case showing when these railroad tracks were built on the lot); next, the remainder of the lot, including the land in dispute, apparently severed in use from the railroad by a well defined line, fenced above and below, and fenced for more than twenty years, at least, along the line of the portion in dispute and the portion disclaimed; next, the portion in dispute not only separated thus, but separated by a side fence, and built upon, and in the actual occupancy of the defendant and his predecessors; next, a corporate intention, if that has been established by competent evidence, some time, in some way, to use the land for railroad tracks. That is the sum total of the evidence on that proposition, and I say to you as a matter of law the railroad has not established its immunity from adverse possession under the legal principle which it invokes.' I may.be wrong about that, and if I am the error will be easily subject to correction.”

The question is succinctly stated in the appellant's statement of the question involved, “Can title to land purchased by a railroad company for railroad purposes, adjoining its right of way, but not actually occupied by tracks, be acquired by twenty-one years' adverse possession?”

The appellant acquired its title -in 1870. At that time the defendant's predecessor in title clearly indicated the possession of the strip in dispute by a fence, which was notice to all tbie world of the claim thereto. The owner at that time, therefore, had a sprouting title which required only time to- mature. The defendant purchased this sprouting title. It could have been cut down at the time of its purchase by the plaintiff who was then, at least apparently, the owner of a better title.

There is no denial here of the general principle stated in Overfield v. Christie, 7 S. & R. 173, and in Hughs v. Pickering, 14 Pa. 297, that the purchaser from a trespasser may tack the latter's adverse possession to his own, so as to give title by the statute of limitations. It is claimed, however, that the rule does not apply in this case, because the plaintiff purchased Lot No. 27, with the intention of expanding its right of way and of laying tracks upon it, or at least upon a portion of it, and in support of this contention, Reading Co. v. Seip, 30 Pa. Superior Ct. 330, is cited. The question decided in that case, however, is entirely different from the one which is presented by the facts here. The question there was whether or not an individual could acquire title by adverse possession to land purchased and used by a railroad compapy for the construction of switches adjacent to, and diverging from, its main track, the switches having been erected or built prior to the inception of the defendant's title'. Here, however, the facts are directly the reverse. The defendant had his flag of defiance up, as evidenced by his possession and his intention to defend it, manifested by a fence indicating his boundary, at the time at which the railroad purchased. The land which it purchased had not been dedicated in any way to public use and there was, therefore, no invasion by the defendant of any rights which the public had or of any use which the plaintiff had actually made for the purpose of discharging its duty to the public. If there had been intention at the time to-make such use of the land purchased by it, it could have recovered from the defendant or his predecessor in title, because the sprouting title had not then matured, for, as was said in Covert v. Railway Co., 204 Pa. 341, when the defendant purchased from his predecessor, he received “simply a sprouting title, liable to be cut down by the holder of the better.' one, but just as certain not to be felled by the blow of any man,, if allowed to spread its roots and fully mature after a growth of twenty-one years.” Whatever may have been the intention of the plaintiff company, prior' to- or' at the time this suit was brought, its conduct does not indicate the use now claimed, for not only the strip of three feet in dispute but the entire balance of the piece for which ejectment was brought and to which the defendant disclaimed title was fenced out from its right of way, and it seems to be conceded by the plaintiff in his history of the case that “the defendant disclaimed title to all of the portion fenced, except a strip six feet front on William Street, and running back to the railroad’s right of way,” which is indicated on the drafts of both plaintiff and defendant by a fence.

In Plymouth Railroad Co. v. Colwell et al., 39 Pa. 337, there is a clear recognition of what we regard as a well-settled principle in Pennsylvania that lands purchased by a railroad company beyond what are actually dedicated to corporate purposes are subject to all the rules and limitations which-- prevail as- between private owners.

In Penna. R. R. Co. v. Freeport, 138 Pa. 91, quotation is made by the judge of the court below from the answer of Judge Sterrett to points presented in the case of Penna. R. R. Co. v. Gray in- the common pleas of- Westmoreland county, in which it is said: “The charter makes the road a.public highway, and we are satisfied that the statute of limitations will not run against the plaintiff’s right of way, and, as a matter of law, we so instruct you.” In. the case- under consideration, however, there is no claim that the land claimed by the defendant under title by adverse possession interfered in any way with the plaintiff’s original right of way. The most that is claimed is that the land was purchased with the intention of extending the plaintiff’s tracks, so as to make it a part of its railroad for traffic or public use. There was no evidence, however, so far as we can ascertain, which in any way indicates a dedication of the strip claimed by, and awarded to, the defendant under his claim of title by adverse possession. Items of evidence which indicate quite the reverse are clearly pointed out by the trial judge in the court below in the part of the charge to which exception is taken and here assigned for error.

The motion for judgment, non obstante veredicto, is based upon the same grounds as those to which exception is taken in the charge of the court assigned for error, and for the same reason we think the motion was properly denied.

The case below was well tried, the charge of the trial judge is admirably clear, complete and satisfactory, and we see no reason to disturb the judgment based upon the intelligent verdict which was rendered in the case.

Judgment affirmed.


author: Orlady, J.,

text:
    Spitzel v. Hunt, Appellant.

      Promissory notes — Defense—Notice of protest — Charge of court.

    In an action against the indorser of a promissory note, where the defendant sets up as a defense failure of due notice of protest at the proper time, and the evidence on the subject is conflicting, it is reversible error for the court to charge that the jury could return a verdict for plaintiff if they thought the defense was a mere technical defense, without giving in the charge any explanation of what was meant by a technical defense.
    Argued Oct. 22, 1908.
    Appeal, No. 85, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1903, No. 2,352, on verdict for plaintiffs in case of Leopold Spitzel et al., trading as Sanford Spitzel, Copartners, trading as Leopold Spitzel & Bros.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    July 14, 1909:
    Reversed.
    Assumpsit against the indorser of a promissory note. Before Moschzisker, J.
    Verdict and judgment for plaintiffs for $906.58. Defendant appealed.
    ■ Errors assigned were the instructions quoted in the opinion of the Superior Court.

      DeForrest Ballou, for appellant.

      Isaac Hassler, for appellees.
   Opinion by

Orlady, J.,

This action was brought on a promissory note, signed by Francis J. Lingg, dated November 28, 1902, for the sum of $694.75 payable four months after date, to the order of Isaac P. Hunt at No. 125'South Seventh street, and indorsed, Isaac P. Hunt, Nathan Doras, Leopold Spitzel & Brothers, and others. The note was not paid at maturity and the plaintiffs were obliged to lift the note from a bank which then held it, and have brought this suit against the defendant as an indorser. The contention of the defendant was that he was an accommodation indorser, and in addition to his defense as such, that he was- not liable on account of a defective presentation for payment at the proper time and -place,. The testimony was very conflicting, and under the evidence the plaintiffs failed to adduce sufficient proof to submit to the jury of the demand for payment, protest and -notice of protest on the day required by our statute to the .indorser at No. 125 South Seventh street; but under other evidence adduced, the court below held that it was a proper case for submission to the jury.

A .number of points were presented and refused ^without reading, and the only assignments with which we are concerned are as follows: 10. The learned court erred in charging the jury as follows: “If you believe this defense is a mere technical defense, you should find for the plaintiffs.” This statement by the court was in response to a request for a special exception on the part of the defendant, and should be taken in connection with the answer of the court given at that time as follows: “In answer to that I say, that I leave it entirely with the jury; I do not want to control the matter at all.” In the body of the charge the court stated: “ If you think the defense is a mere technical defense, you can dismiss it and render a verdict for the plaintiffs, but it is your duty to give consideration to the defense before you make up your mind to that. Of course, if you do not believe that, and you believe that the defendant is entitled to a verdict, you bring in your verdict for the defendant.” At the opening of his charge the learned trial judge stated: “There have been a great many technical points raised in this case, but I am going to try to make the case as simple and plain as I can. I am not going to review the evidence at large, because I do not consider it necessary to do so. It is for you to decide what you believe and what you do not believe.”

There is a well-defined boundary line of duty which separates the court from the jury, and the difficulty with the instructions as above quoted is, that the jury was not given any explanation of what was meant by the technical defense, and the determination of the case submitted to them was made to depend not upon whether the facts were as claimed by the plaintiffs or as by the defendant, but rather upon the question of whether the defense 'interposed to the plaintiffs’ claim was a technical one. A defendant may in good conscience owe a debt and yet be relieved at law for its payment. A defense that is purely a technical one, as the statute of limitations, want of due notice, or notice at the proper time, benefit of the exemption laws, the time, place or manner of service of process, which 'to the lay mind is rightly considered as technical, yet in law is frequently adjudged to be sufficient to prevent a judgment. In submitting the case to the jury the court determined that the defense, was not a mere sham and pretense, but was entitled to substantial consideration. Having decided that the case was one for the jury, it followed that it should be submitted to that tribunal in accordance with our well-established rules as stated in Burke v. Maxwell’s Administrators, 81 Pa. 139. The right of a judge to express an opinion upon the evidence has been recognized in a number of cases. In Ditmars v. Commonwealth, 47 Pa. 335, it was said by Thompson, J.: “ It is not error on the part of the court to express an opinion merely upon the facts of the case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Care must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them for themselves. . . . When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially, and if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided; they can hardly fail to mislead the jury and work injustice. For further enforce- • ment of this rule see Coxe v. Deringer, 82 Pa. 236; Linn v. Commonwealth, 96 Pa. 285; Mattern v. McDivitt, 113 Pa. 402; Reichenbach v. Ruddach, 127 Pa. 564; Commonwealth v. Warner, 13 Pa. Superior Ct. 461; Lee v. Williams, 30 Pa. Superior Ct. 349.

We do not doubt the learned judge intended to do exact justice, but he unwittingly stepped over the line in making the liability of the defendant depend- upon the question of whether his defense was a technical one or not. Without further explanation it is quite apparent that such a statement coming from the bench would control, or at least very seriously affect, the determination of the jury.

The tenth assignment of error is sustained, and the judgment reversed with a venire facias de novo.


author: Rice, P. J.,

text:
    Schuler v. Schuler, Appellant.

      Equity — Jurisdiction — Legal title — Demurrer—Answer—Easement— Contract.

    1. A demurrer to a bill in equity admits the material facts averred in the bill, and where such facts show a legal title in the complainant it is not a prerequisite to the enforcement in equity of equitable rights incident thereto that the complainant’s legal title be established in an action at law.
    2. The jurisdiction of a court of equity to restrain or prevent the permission or continuance of acts contrary to law and prejudicial to the rights of individuals as applied to a bill to restrain the obstruction of an easement, is not ousted by an answer denying the plaintiff’s legal right.
    3. Where two landowners enter into an agreement in writing relating to the flow of surface water, and there are reciprocal covenants, and a dispute arises as to the construction of the instrument, but there is no dispute as to any extrinsic fact affecting its construction, a court of equity has jurisdiction to determine the construction of the instrument.
    4. Where in such an instrument it is agreed that one of the parties shall have the right to flow the surface water as it has been wont to flow for many years, without any provision making such right conditional, the inference is that the parties intended the right to vest at once; and this inference is not weakened by a covenant of the party securing the right, to fill up all gullies and ditches washed out by the waters caused by the falling of rain or the melting of snow on his own premises then existing, or that might thereafter be washed out, so as not to increase the flow of said waters of the defendant’s premises, for any unreasonable length of time. The obligation to fill the gullies is a continuing one.
    Argued Dec. 10, 1908.
    Appeal, No. 156, Oct. T., 1908, by defendant, from decree of C. P. Lehigh Co., Jan. T., 1907, No. 1, on bill in equity in case of Lewis L. Schuler v. Peter A. Schuler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver-, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Trexler, P. J., filed the following opinion:
    Lewis L. Schuler and his brother, Peter A. Schuler, are the owners of adjoining lands in Lower Milford township, Lehigh county. What may be called the upper field of Lewis Schuler drains into a gully, which is situate along the fence line running east and west, and which gully or gutter continues on Peter A. Schuler’s land, and the water finally flows over sprout land of Lewis L. Schuler.
    The drainage had been a matter of contention between the parties for some time and finally became a matter of litigation, which was settled in writing, dated January 17, 1906.
    In said agreement, Peter A. Schuler rceognized Lewis L. Schuler’s right to flow surface water collected from the rainfall on the upper field through the gully along the line fence, as the same was wont to flow for many years, clear of any and all obstructions. Peter A. Schuler agreed to remove all obstructions placed in the aforesaid ditch or drain and repair the banks of said ditch so that the water flows from the same freely and unobstructedly.
    His brother, Lewis L. Schuler, the owner of the upper field, agrees to fill up the gulleys and ditches washed out by the water caused by the rainfall in the upper field so as not to increase the flow of said waters over the lands of Peter A. Schuler for any unreasonable length of time.
    We need not concern ourselves about the situation of affairs prior to the making of this agreement. This agreement was the settlement of a lawsuit, was for a consideration and is binding upon the parties. _
    After the agreement was made, Peter A. Schuler did not remove the obstruction from the gutter, and by reason of the gutter not being opened, the water was diverted and instead of flowing along the whole length of Peter Schuler’s field and thence into the waste land of Lewis Schuler, it only went a certain portion of the way and then flowed upon the arable land of Lewis Schuler and caused considerable damage.
    Peter Schuler’s excuse for not complying with the agreement is, that Lewis Schuler did not fill up his gullies. It will be noticed that the agreement requires Peter Schuler to remove the obstruction in the aforesaid ditch and repair the bank of the said ditch so that the water will flow through the same unobstructedly. It was a present condition which could be remedied by Peter Schuler at once. On the other hand, Lewis Schuler’s filling up of the gullies caused by the rain on his land were to be filled up by Lewis Schuler so as not to increase the flow of said water on the premises of Peter A. Schuler for any unreasonable length of time.
    It is apparent that in a field that is under cultivation entry cannot be made at any time for the closing up of gullies; such work must be done at such times of the year when the situation is adapted for it and the crop upon the field has been harvested. Whilst the agreement is likely to be the cause of constant friction between the parties and it is to be regretted that the matter cannot be ended at one stroke, still we must treat the conditions as they are.
    To my mind, Peter Schuler is clearly in the wrong. He failed to comply with his part of the agreement, whilst Lewis performed his, and without, further consideration, I think the plaintiff is entitled to the relief sought for.
    It is argued by the defendant that it is impossible for Lewis Schuler, the plaintiff in this case, to keep the gullies in the upper field so as not to increase the flow of water over the lands of Peter Schuler, and that, therefore, the agreement being impossible to be performed, binds neither of the parties. To this view, I cannot assent. The agreement did not contemplate that if Lewis Schuler should fill up all the gullies and ditches in his upper field that that would remedy the flow for all time to come. His duty, under the premises, is a continuing one, and whilst it may be impossible to fill up the gullies in such a manner that they will not again be made by the washing of water, still it isn’t impossible to fill them up from time to time when they occur.
    The question of recompensing the plaintiff is also involved in the question. It appears by the testimony of witnesses that the plaintiff is seriously damaged, but the witnesses do not agree as to the exact amount. Considering the area damaged, we can arrive at a proper amount. I think $125 would recompense Lewis L. Schuler for the damage done.

      Error assigned was the decree of the court,

      July 14, 1909:

      Milton C. Henninger, with him George M. Lutz, for appellant.
    —The easement of the plaintiff granted in the said agreement to flow the water from his field over the field of the defendant is dependent upon the performance of certain agreements upon the part of the plaintiff: Rhea v. Forsyth, 37 Pa. 503; North Pennsylvania Coal Co. v. Snowden, 42 Pa. 488; Grubb’s App., 90 Pa. 228; Norris’s App., 64 Pa. 275; Pitcairn v. Pitcairn, 201 Pa. 368.
    The court had no jurisdiction: Norris’s App., 64 Pa. 275; O’Neill v. McKeesport, 201 Pa. 386; Washburn’s App., 105 Pa. 480.
    The general rule of law is that a party who invokes equity must do so with clean hands and must do equity: Datz v. Phillips, 137 Pa. 203.
    The cases in Pennsylvania are numerous which decide that where .covenants are mutually dependent, a plaintiff must show full performance on his part, or a willingness so to perform before he can hold a defendant on his covenants: Murray v. Iron Hall, 9 Pa. Superior Ct. 89; Fisher v. Mershon, 9 Pa. Superior Ct. 238; Easton v. Jones, 193 Pa. 147; Morrow v. Waltz, 18 Pa. 118.

      Claude T. Reno, with him Clinton A. Groman and James L. Schaadt, for appellee. —
    The appellant seeks to compel appellee to establish his rights at law. The answer is, that there is no such necessity inasmuch as the rights of both appellee and appellant are definitely settled and established by the agreement in suit: Wilson v. Cather, 214 Pa. 3.
   Opinion by

Rice, P. J.,

In order to sustain the demurrer the defendant was bound to sustain the general proposition that a court of equity has no jurisdiction to restrain the disturbance of an alleged easement until the plaintiff’s right has been established in an action at law. We say this, not because counsel expressly argue that this is the general rale, but because it would be the logical conclusion from holding that this bill was demurrable. Upon the facts admitted by the demurrer, the right of the plaintiff to have the water flow as it had flowed for fifty years (so alleged in the bill) and as the defendant agreed that it should be permitted to flow in the future, was clear. If upon such a state of facts as is alleged in the bill the right of the plaintiff must be established in an action at law before he can invoke the aid of a court of equity, there is no state of facts to which the rule would not apply. But there is no such general rule. A demurrer to a bill in equity admits the material facts averred in the bill, and where such facts show a legal title in the complainant it is not a prerequisite to the enforcement in equity of equitable rights incident thereto that the complainant’s legal title be established in an action at law: Bitting’s Appeal, 105 Pa. 517. This is all that need be said in support of the action of the common pleas in overruling the demurrer.

Nor is the jurisdiction of the courts of equity to restrain or prevent the commission or continuance of acts contrary to law and prejudicial to the rights of individuals, as applied to a bill to restrain the obstruction of an easement, ousted by an answer denying the plaintiff’s legal right. The idea was thus expressed in Miller v. Lynch, 149 Pa. 460: It is not enough for the defendant to deny the plaintiff’s right; his denial must be based upon facts which show a substantial dispute.” If upon the proofs adduced at the trial it appears that no' fact essential to the establishment of the plaintiff’s legal right is wanting, or is in substantial dispute, an equity based on that right may be asserted and a decree for equitable relief made.

It appears in the present case that the plaintiff began an action at law in which the dispute as to his legal right would have been adjudicated, if the action had been prosecuted to trial and judgment. But the parties saw fit to settle the dispute, and thus end the litigation, by a written agreement, in which the plaintiff’s right to flow the surface water collected from the fall of rain and the melting of snow on his premises upon the adjoining land of the defendant, along the line fences between their respective properties, “ as the same was wont to flow for many years,” free and clear of obstructions erected or caused to be erected by the defendant, his heirs and assigns, was -unequivocally agreed to, if not distinctly recognized as a previously existing right. There is no dispute as to the execution of this instrument, or as to its terms, and no allegation that it has been rescinded or annulled. There is a dispute as to its construction, but there is none as to ány extrinsic fact affecting its construction, and therefore there is no occasion for remitting the plaintiff to an action at law to determine its construction, and there would be no propriety in doing so. The question then arises whether the vesting of the right to have the water flow as it had been wont to flow was dependent upon the prior performance by the plaintiff of what he covenanted to do. This question is to be determined by inferring, with as much certainty as the case permits, the meaning and purpose of the parties from a rational consideration of the whole instrument and the subject-matter of the agreement: 2 Parsons on Contracts, 529. The declared purpose of the instrument was to carry into effect the amicable adjustment the parties had made of the differences that had recently existed between them as to the plaintiff’s right to flow the surface water as it had been wont to flow for many years. Their evident intention was to settle that question finally and to avoid any dispute regarding it. Hence, when they agreed that the plaintiff “shall have the right,” without expressly making it conditional, the reasonable inference is that they intended it to vest at once. This inference is not weakened by the plaintiff’s covenant to fill up all gullies and ditches washed out by the waters caused by the falling of rain or the melting of snow on the plaintiff’s premises, then existing or that might thereafter be washed out, so as not to increase the flow of said waters on the defendant’s premises for any unreasonable length of time. The learned judge below well says: “The agreement did not contemplate that if Lewis Schuler should fill up all the gullies and ditches in his upper field that would remedy the flow for all time to come. His duty, under the premises, is a continuing one, and whilst it may be impossible to fill up the gullies in such a manner that they will not again be made by the washing of water, still it is not impossible to fill them up from time to time when they occur.” Properly interpreted this is a continuing covenant on the part of the plaintiff not to permit an increase of the flow of water for an unreasonable length of time by leaving gullies as they are caused from time to time unfilled, but the performance of this continuing obligation was plainly not intended as a condition precedent to an immediate vesting of the easement which he here asserts. We conclude that no fact essential to the establishment of the plaintiff’s legal right is lacking or is in substantial dispute under the proofs, and therefore that the court had jurisdiction to decree equitable relief, unless for equitable reasons the plaintiff was not in position to demand it.

But although the fact of the plaintiff’s easement was clearly established, the court was not bound to go to the full extent of decreeing specific performance of the defendant’s subsequent covenant to remedy certain conditions existing at the time of the agreement, if the plaintiff was in default in filling up the gullies then existing on his own land. In such a case, although in a court of law the covenants would be held to be independent, •yet a court of equity might well refuse to decree specific performance of the covenant last referred to: Datz v. Phillips, 137 Pa. 203. It is unnecessary, however, to go into an extended discussion of this question, because the learned judge has found that the plaintiff filled the gullies and ditches on his land, and at the date of suit brought was not in default in respect of that obligation. Having regard to the nature of his covenant, as heretofore explained, we are unable to agree with the appellant’s counsel that there was not sufficient evidence to sustain this finding. As to the effect to be given to such a finding of the trial court we refer to the cases cited in Davis v. S. W. Penna. Pipe Lines Co., 34 Pa. Superior Ct. 438 at page 442. We repeat in conclusion, what has been distinctly intimated heretofore, that the fact that the plaintiff is not presently in default will not relieve him from the continuing obligation to fill the gullies as they occur so as to prevent an increase of the flow of water for an unreasonable length of time.

The decree is-affirmed at the costs of the appellant.


text:
    Hascsak v. Leseinsky, Appellant.

      Actions — Joint and several liability — Beneficial associations.

    1. Whenever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for-the purpose, but, on the other hand, there should be words of severance in order to produce a several responsibility or a several right. Whether the liability incurred is joint or several, or such that it is either joint or several at the election of the other controlling party, depends upon the terms of the contract, if they are express.
    2. Where three officers of a beneficial society make out a check to their own individual order for death benefits due the wife of a deceased member, and all three indorse it, and two collect the proceeds and never pay them to the beneficiary, the third indorser is liable for the amount of the check to the beneficiary.
    Argued March 4, 1909.
    Appeal, No. 32, March T., 1909, by defendants, from order of C. P. Lackawanna Co., Sept. T., 1906, No. 757, dismissing exceptions to report of referee in case of Anna Hascsak by L. P. Wedeman v. John Leseinsky et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J.
    Affirmed.
    Exceptions to report of W. N. Leach, Esq., referee. Before Carpenter, J.
    The opinion of the Superior Court states the case.

      Errors assigned were in dismissing the exceptions.,

      M. J. Martin, for appellants. —
    There was no promise either express or implied by the defendants to pay any money to the plaintiff: Beers v. Robinson, 9 Pa. 229; Susquehanna Ins. Co. v. Perrine, 7 Watts & Ser. 348; Given v. Rettew, 162 Pa. 638; Adams v. Kuehn, 119 Pa. 76; Freeman v. R. R. Co., 173 Pa. 274.
    The association was not made a party to the action, and the action cannot be maintained against its officers: McAleer v. McMurray, 58 Pa. 126; Craig v. Gregg, 83 Pa. 19; Brown v. Orr, 112 Pa. 233; Fisher v. Olive Branch Lodge, 152 Pa. 449; Pfeifer v. Ben. Soc., 173 N. Y. 418; Kurz v. Eggert, 9 W. N. C. 126; Pain v. Sample, 158 Pa. 428; Paul v. Keystone Lodge, 3 W. N. C. 408; Luders v. Volp, 8 W. N. C. 417; McDowell v. Smith, 21 W. N. C. 558.
    July 14, 1909:

      Edward W. Thayer, for appellee,
    cited: Adams v. Kuehn, 119 Pa. 76; Freeman v. R. R. Co., 173 Pa. 274; Townsend v. Long, 77 Pa. 143; Phila. v. Reeves, 48 Pa. 472; Wynn, Admr., v. Wood, 97 Pa. 216; Justice v. Tallman, 86 Pa. 147; Hostetter v. Hollinger, 117 Pa. 606; Beers v. Robinson, 9 Pa. 229; Torrens v. Campbell, 74 Pa. 470.
   Opinion by

Orlady, J.,

Prior to 1902, Theodore Hascsak became a member of a fraternal and beneficial society, called the Union of Greek and Catholic Russian Brotherhood of United States of America, and in its registration book, after stating his age, place of birth, members of his family, etc., in answer to the question, “After death to whom shall the Union pay the benefit? ” he wrote as follows, “One half to my wife, the other half to St. Nicholas Church, of Rendham, Pennsylvania.” It was prescribed by the by-laws in force at the time he became a member that, “In case a deceased member leaves no will, then, the money is left to the nearest heir or heirs recognized by the Union which are, first, wife and children, second, parents, father and mother.”

Theodore Hascsak died May 29, 1902, in good standing in the society, and left to survive him, as the only member of his family, his wife, Anna, the real plaintiff in this case. The St. Nicholas Church of Rendham, Pa., was held to be not a proper person to be recognized as an heir under the by-laws of the union, and as no proof was adduced before the referee as to the validity of this bequest it was held to be void.

After this action of assumpsit was brought, the case was referred to a referee, who found in favor of the plaintiff and against the defendant for the full amount provided under the by-laws, which was provided for as follows: “If any member in good standing die, his wife, children or any other heirs, receive the sum of six hundred dollars from the Union.” After proper proof of death, a check was duly signed by the president, secretary and treasurer of the Supreme Lodge of the union, and made payable to the order of the three named defendants, as individuals, for $600 and was received by John Leseinsky, one of the defendants, who indorsed it, and gave it to the other two, who then went to a bank and received the proceeds. They never made payment of any part of it to the plaintiff, although frequently demanded so to do. While they were in fact officers of the local union, the money passed to them as individuals, and the act of each was necessary to enable anyone to receive the money on the check. These defendants were also members of the local union at Rendham, of which the plaintiff’s husband was a member, and knew the source of the money, the party entitled to receive it, and with full knowledge of the use to which it was to be applied, that is, to be transmitted to the widow, they converted it to their own use. The act of each in this transaction must be treated as the act of all.

The vital facts in the case are few and are undisputed, and there should not be any doubt as to the application of the law to them. In Pittsley v. King, 206 Pa. 193, it is held that whenever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for this purpose; but, on the other hand, there should be words of severance in order to produce a several responsibility or a several right. Whether the liability incurred is joint, or several, or such that it is either joint or several at the election of the other contracting party depends upon the terms of the contract, if they are express: 1 Parsons on Contracts, 11; Enys v. Donnithorne, 2 Burrows, 1190; Phillips v. Bonsell, 2 Binn. 138; Philadelphia v, Reeves, 48 Pa. 472.

The one named beneficiary, to wit: the church, not being within the class of persons entitled to receive in case of death, and the wife, the plaintiff, being, the only beneficiary entitled to the fund, the conclusion reached by the referee and the court below was correct.

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


text:
    Hershey v. Johns, Appellant.
    July 14, 1909:

      Affidavit of defense — Practice, C. P. — Goods sold and delivered — Parol evidence — Written instrument.

    In an action to recover the price of an engine sold under a written contract, an affidavit of defense is insufficient which avers that prior to the written contract the plaintiff made certain representations as to the capacity of the engine which representations turned out to be untrue, if there is no averment that the representations were omitted in the writing through fraud, accident or mistake and no averment that the engine delivered was a different one from that mentioned in the contract, or that the plaintiff failed to comply with the terms of the contract.
    Argued. March 9, 1909.
    Appeal, No. 20, March T., 1909, by-defendant, from order of C. P. York Co., Oct. T., 1908, No. 29, discharging rule to open judgment in case of Charles W. Hershey v. S. L. Johns.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment..
    The opinion of the Superior Court states the case.

      Error assigned was order discharging rule to open judgment.

      McClean Stock, for appellant.

      C. E. Ehrehart and Chas. A. Hawkins, for appellee.
   Opinion by

Beaver, J.,

The defendant, by his petition in the court below, asked to have a judgment, entered against him by de'fault for want of a sufficient affidavit of defense, opened, so as to let him into a defense, on the ground that, through the inadvertence of his attorney, he had not been notified of the time when an affidavit of defense was necessary, and that none was, therefore, prepared and entered. Accompanying the petition, however, was the affidavit of defense which the defendant could make and would offer as the ground for preventing judgment, if the judgment were opened. The court below, in the opinion refusing the prayer of the petitioner, says: “To the end that no injustice shall be done the defendant, by reason of the facts shown the court, we feel it incumbent upon us to grant the relief prayed for, the opening of the judgment and'the allowance of the filing of the affidavit of defense, if it sets forth a legal defense to the whole or part of the plaintiff’s demand. A careful reading and consideration of the affidavit satisfies us that it does not set out a legal defense.” 'It was for this reason that the rule to show cause why the judgment should not be opened was discharged at the costs of the defendant. The sufficiency of the proposed affidavit of defense, therefore, is the question considered by the appellant in his argument and the only question necessary to be considered by us.

The plaintiff sold to the defendant, upon a written order, as set forth in the copy of the contract filed with the statement of.claim, “One (1) No. 16-20 H. P. gasoline engine, with cut under truck, with brake & dynamo & dry cell battery & other regular equipment. Price $500 & Second Hand 14 H. P. Stationary Dissinger Bros, gasoline engine. Terms cash in 30 days.” , There is no denial of the fact that the plaintiff delivered to the defendant the engine described in this order".

The affidavit of defense sets forth an alleged conversation between the plaintiff and the defendant, in which the plaintiff represented to the defendant that the engine would be able to do certain work, in the affidavit fully set forth, and that, after its delivery and. a thorough trial and numerous tests were made, it could not generate the power necessary to run the machinery and do the work as represented. It is admitted in the affidavit of defense that the written contract followed, in point of time not definitely stated, but clearly.they were not contemporaneous, the agreements or representations which were not included therein and made part thereof.

It is not averred that the verbal representations were omitted through fraud, accident or mistake. They were not contemporaneous, being made some time in September,. 1906, the written order for the engine being dated. October 1, 1906, admittedly the day on which it was signed. Wé cannot see, therefore, that the defendant could be allowed, in the event of a trial, to give in evidence these representations which are a practical contradiction of the written agreement.

In the absence of a denial that the plaintiff delivered precisely what he agreed to deliver to the defendant, and an averment that the engine which he delivered was a different one from that which he agreed to deliver, and that the plaintiff failed to comply with the terms of the written order of the defendant for the No. 16-20 H. P. engine, as described, we are of opinion that the affidavit, under the well-settled rules of construction of written agreements, as laid down in many cases, was insufficient, and that the rule to show cause why the judgment should not be opened was, for that reason, properly discharged.

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


author: Per Curiam,

text:
    Siracusa, Appellant, v. Miller Construction Company.
    Argued April 13, 1909.
    Appeal, No. 87, April T., 1909, by plaintiff, from judgment of C. P. Venango Co., Nov. T., 1907, No. 40, on verdict for defendant in case of T. Siracusa v. Miller Construction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from judgment of a justice of the peace in favor of the plaintiff. Before Criswell, P. J.
    From the record it appeared that the sum in controversy was $33.99, and was for wages.
    Verdict and judgment for defendant.

      Errors assigned were rulings on evidence and various instructions, including the whole charge of the court, and particularly in saying to the jury “it appears to me that the weight of the evidence in this case is for the defendant.”

      Gervaise G. Martin, for appellant.

      July 14, 1909:

      A. R. Osmer, with him J. H. Osmer and N. F. Osmer, for appellee.
   Per Curiam,

The six judges who'heard this case being equally divided in opinion as to there being reversible error in the record, the judgment is affirmed.