author: Orlady, J.,

text:
    Bodine v. Wayne Title & Trust Company, Appellant.

      Conveyancers — Negligence—Damages—Searches—Covenant to fence.

    Where a title insurance company agrees as a conveyancer to examine title to land, and see that it is clear and free of all incumbrances, and by a separate contract in writing at a different date it insures the title, and it appears that the company negligently overlooked an incumbrance on the land created by the deed of a former owner, suit may be brought immediately upon the breach by the person injured against the company for the negligent performance of its professional duty as a conveyancer, and the question of the company’s liability under its title policy is not in the case.
    In an action against a conveyancer to recover damages for a loss resulting from negligence in overlooking a covenant' in a deed in the line of title by which the owner of the land was bound to erect and perpetually maintain a fence along a railroad company’s right of way, the measure of damages is the-actual cost of the fence, and such gross sum as will produce annually the amount it will cost annually to maintain the fence and keep it in repair.
    Argued Dec. 11, 1906.
    Appeal, No. 170, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1904, No. 1,618, on verdict for plaintiff in case of S. Lawrence Bodine v. Wayne Title & Trust Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for loss resulting from the negligence of the defendant as a conveyancer. Before McMichael, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court charged as follows :
    The cases in Pennsylvania have gone so far as to say in the alternative case, where the railroad company sues on its covenant, that what it is entitled to recover in a case of this kind is the cost of the fence and the cost of maintenance. That testimonjr is to a certain extent positive. You heard the witnesses. They differed somewhat in their estimates according to locality and according to their own experience. But still, while one of us, I know, is not a farmer and does not know much about fencing, we know more than we did before we opened this case, and you have testimony of what the cost is. Then we come to two matters, one of which was a matter of evidence and the other a matter of argument, but they are very interesting and they are matters which science will not solve but common sense may, and it is for you. [One is the argument, supported by evidence of the plaintiff, who says he is damaged more than the cost of the fence and the cost of maintenance, because the fence, according to the testimony, is only going to last fifteen years, and when he is through that fifteen years he will have to erect another, and he says, therefore, he should have a principal sum, which he gave you, which at interest, so much a year to be earned on that principal sum, will at the end of fifteen years enable him to go on with the fencing. I think the evidence was admissible and it is for you to determine whether the argument is properly drawn from that testimony. It is for you to draw the inference.] [11] On the other hand, defendant’s counsel argued, supported by evidence, partly by the cross-examination of the plaintiff’s witnesses and partly by the evidence of his own witnesses, that this was a farm and used for farm purposes, and he argued, with how much persuasiveness I do not know, but he argued that if this land was used as farm land, the plaintiff would need the fences anyhow, that he could not let his cattle be in there without having fences to turn the cattle, and that after all, tliifc which is called a charge or incumbrance was nothing at- all, that the plaintiff would have to do it anyhow.
    Now, gentlemen of the jury, I shall leave the case with you, except for the answers to points, which I can only explain in this way, that a judge has not only to charge the jury on the evidence — and however much he may wish to let them go with a- blessing, like the preacher, he must preach the sermon — but he must also answer any hypothetical points which, in the opinion of counsel, touch the case. But I think I have brought to your attention the questions which you are to decide by a common-sense consideration of the evidence. The salient question of fact, was the defendant company careless ? Second, if it was, what did the plaintiff suffer ? What was his loss ? And with that I shall leave the case with you, after charging you on the points as submitted.
    [A Juror; May I ask your honor a question? I am interested in this, because I have considerable business of this kind myself.
    The Court: Yes.
    The J uror: As I understand it, the defendant gave a policy of insurance. How does that affect the liability ?
    The Court: It does not affect it at all in my judgment. In ' my opinion — and you will take the law from me, subject to review hereafter — the policy of insurance, which was excluded, does not affect the question here. It is a very interesting and sensible question, and I am glad you asked it. But, subject to review hereafter, the policy of insurance, which is a contract to indemnify the plaintiff, does not affect the question here. Here the plaintiff sues, as he has a right to sue, for the loss he suffered by the tort or wrong done by the defendant, and in my opinion, the policy of insurance has no bearing, except as it is part of the history of the case. He brings his suit for the loss which he suffered through the carelessness of the defendant company, which he employed and paid as a conveyancer to look up his title and get his searches and so on. The policy of insurance is a contract. Now, how far he might recover on that I do not know, I have not examined into it. How far he might, as was argued at length by counsel for the defendant, defalk against the mortgage is a matter depending on other considerations than we have here. I am glad the juror, who interested me very much before by his intelligent questions to counsel, asked me that question, because I can give my view, which is subject to review hereafter.] [7]
    Defendant presented these points :
    2. By the terms of the deed from William C. Latch to S. Lawrence Bodine, the property was conveyed freed from incumbrance done or suffered by Latch. Bodine, therefore, has a right of action against Latch for any damage which he has sustained by reason of the breach of this covenant, and there can be no recovery against the defendant in this case until Bodine has exhausted his remedy against Latch. Answer: Declined. [1]
    The plaintiff’s remedy in this case is primarily against Latch, his grantor, for breach of. covenant, and there can be no recovery against the defendant until the plaintiff has exhausted his remed}1, against the grantor. Answer : Declined. [2]
    11. The title insurance policy issued by the defendant and accepted by the plaintiff covers the terms of the contract and undertaking between them, and there can bé no recovery in this case; suit should have been brought on the title policy. Answer: Declined. [4]
    12. Under all the evidence the verdict should be for the defendant. Answer: Declined. [5]
    Verdict for plaintiff for $1,851, upon which judgment was entered for $951, all above that amount having been remitted. Defendant appealed.

      Errors assigned among others were (1, 2, 4, 5, 7, 11) above instructions, quoting them.

      V. Gilpin Robinson, with him Frederick B. Calvert, for appellant.
    — Defendant is only liable for plaintiff’s actual loss and the amount of his loss cannot be fixed until plaintiff has failed to recover in whole or in part from his grantor: Wolbert v. Lucas, 10 Pa. 73; Peck v. Jones, 70 Pa. 83; Wilson v. Ott, 173 Pa. 253; Watson v. Muirhead, 57 Pa. 161; Lynch v. Com., 16 S. &. R. 368; Riddle v. Poorman, 3 P. & W. 224; Cox v. Livingston, 2 W. & S. 103.
    The measure of damages would appear to be fixed at the client’s actual loss: Cox v. Livingston, 2 W. S. 103 ; Hart v. Allen, 2 Watts, 114.
    The plaintiff’s right to recover, if any, is on the insurance policy.
    The separate contract, if any existed, merged in the joint contract: Miller v. Miller, 4 Pa. 317 ; Stine v. Sherk, 1 W & S. 195 ; Wodock v. Robinson, 148 Pa. 503 ; Colvin v. Schell, 1 Grant, 226; Creigh v. Beelin, 1 W. & S. 83; Gregory v. Griffin, 1 Pa. 208.
    The court erred in fixing the measure of damages at the cost of erecting and maintaining the fence: Bronson v. Coffin, 108 Mass. 175.

      William S. Morris, with him G. Neide Norris, for appellee.
    —The contracts are distinct and did not merge: Jones v. Johnson, 3 W. & S. 276; Close v. Zell, 141 Pa. 390.
    The distinctive nature, purposes and remedies of the contracts of the conveyancer, and of the insurer under the law and facts of this case makes merger impossible: Lawall v. Groman, 180 Pa. 532.
    The right of recovery against the defendant is not limited to action on the policy: Ahl v. Rhoads, 84 Pa. 319; Bradburn v. Railway Co., L. R. 10 Ex. 1; Lindsay v. Gas Co., 14 Pa. C. C. Rep. 181; Gales v. Hailman, 11 Pa. 515.
    The plaintiff’s right to recover of the defendant for its negligence is not postponed until his remedy against the vendor, if any, has been exhausted: Lawall v. Groman, 180 Pa. 532; Wilcox v. Plummer, 29 U. S. 172; Howell v. Young, 5 B. & C. 259; Rhines v. Evans, 66 Pa. 192.

      February 25, 1907 :
    The measure of damages for neglect of official duty, which class of cases includes professional employments of attorneys, conveyancers, physicians, etc., is that the injured party is entitled to compensation commensurate with the actual loss : Cox v. Livingston, 2 W. & S. 103; 1 Southerland on Damages, 411; Lawall v. Groman, 180 Pa. 532; Watson v. Muirhead, 57 Pa. 161; McCandless v. McWha, 22 Pa. 261; Wohlert v. Seibert, 23 Pa. Superior Ct. 213.
   Opinion by

Orlady, J.,

On July 27, 1902, the plaintiff entered into an agreement in writing with W. C. Latch for the purchase of a tract of 142 acres, more or less, of land in Chester county for the consideration of $25,000 ; $200 to be paid on signing the contract, and the balance upon the delivery to the plaintiff “ of a full and satisfactory deed of conveyance for the premises.” He then employed the defendant as a conveyancer “ to examine the title, to see that the title was clear and free of all incumbrances; to draw all necessary papers and to make a settlement and provide for a mortgage for the balance of the purchase price,” and in addition to this, he requested the defendant company to insure the title in fee after it should vest in him. Pursuant to this arrangement the defendant company, acting for the plaintiff as his conveyancer, made an examination of the title, prepared the deed to be executed by Latch to Bodine, excepting thereout “ a strip of land theretofore conveyed to the Pennsylvania Railroad Company by John S. Latch,” a former owner, by a duly recorded deed dated May 2, 1899, and also a mortgage for $20,000 to secure to the grantor the unpaid purchase money. The deed from W. C. Latch to S. L. Bodine was executed and delivered on September 5, 1902, and a title insurance policy of $25,000 was issued by the defendant to S. L.' Bodine dated September 9, 1902. October 6, 1902, the plaintiff paid $36.00 to the defendant as the charge for services rendered as conveyancer, and $62.50 as the consideration for the title insurance policy. In June, 1903, the plaintiff was informed by the Pennsylvania Railroad Company that by a recorded deed of Abraham S. Latch, a former owner of the property, to that company, dated October 6, 1890, it was covenanted that “ the said Abraham S. Latch, his heirs and assigns, shall and will erect good and substantial fences on the line between the land hereby conveyed and his remaining land adjoining the same, and that he and they shall and will at his and their own proper expense at all times hereafter maintain and keep the same in good repair,” and the plaintiff was notified by the railroad company to perform the covenant, of which this defendant was promptly given notice, but it took no action in regard to it. It is conceded that this fencing agreement is an existing and continuing incumbrance on the title, and that it was overlooked or ignored in the search of the title made by the defendant company.

This action of trespass was brought to recover damages for the negligent performance of the professional duty of the defendant, while representing the plaintiff as his conveyancer. It is apparent that the undertaking to perform the duties of a conveyancer was independent of the contract to insure the title to the property, and the negligence which resulted in the plaintiff’s damage lay in the nonperformance of the duties of that employment. The function of conveyancer was fully ended when the deed and mortgage were delivered and the settlement made between W. G. Latch and the plaintiff, at which time the plaintiff was informed that there was no defect, lien, charge or incumbrance against the property. The charge for such service was separate of any other relation the company held to the plaintiff. The effects of the respective contracts were widely different, they were not executed at the same time, did not terminate at the same time, and were founded upon independent considerations, and there is no necessary connection between them. The cause of action against the conveyancer was the breach of duty, not the damages, which are only an incident; and it has been uniformly held that the right of action is complete so that the statute of limitations begins to run from the breach, although the damage may not be known or may not in fact occur until afterwards: Lawall v. Groman, 180 Pa. 532. The contract on which this action is founded not only precedes the contract of insurance but is independent of it, so that the question of merger does not arise: 20 Am. & Eng. Ency. of Law, 596; Close v. Zell, 141 Pa. 390; Kemp v. Penna. R. R. Co., 156 Pa. 430 ; Lehman v. Paxton, 7 Pa. Superior Ct. 259; Wilson v. Pearl, 12 Pa. Superior Ct. 66.

The plaintiff was liable to the railroad company' under the covenant to erect, maintain and keep in good repair substantial fences on the line between its property and his own. The evidence shows that the covenant covered a distance of 4,270 feet, or 427 panels of the post rail fencing in ordinary use in the neighborhood, of which 152 panels had been built by the railroad company, and for the' erection of which the railroad company had recovered a judgment against the plaintiff, which at the time of the trial of this case was still standing against him. There was undisputed proof of actual loss to and a continuing liability of the plaintiff under the covenant to fence the line common between his land and that of the railroad company, hence he could enforce his right against the conveyancer for negligence before proceeding to test the liability of the grantor, or pursue his right, if he had any, under his policy of insurance. The negligence of the conveyancer which violated its contract is practically conceded, and the plaintiff had the right to sue at once : Mayne on Damages, 7th ed., 120, 185 ; Joyce on Damages, sec. 2078; Rhines v. Evans, 66 Pa. 192; Lawall v. Groman, 180 Pa. 532; Gales v. Hailman, 11 Pa. 515.

The dignity of that branch of the practice of the law is stated by Judge Shauswood in Watson v. Muirhead, 57 Pa. 161, as follows : “ The business of a conveyancer is one of great importance and responsibility. It requires an acquaintance with the general principles of the law of real property, and a large amount of practical knowledge, which can only be derived from experience .... The rule of liability for errors of judgment as applied to them ought to be the same as in the case of gentlemen in the practice of law or medicine. It is not a mere art but a science/' If from want of proper knowledge, from a failure to use proper means, or from carelessness in applying those means to the matter' in hand, loss results to his client, the fault is his and he will be responsible.

The agreement to maintain perpetually such a fence as is described in this record was a serious incumbrance: Batley v. Foerderer, 162 Pa. 460; Scowden v. Erie Railroad Co., 26 Pa. Superior Ct. 15. In Erie, etc., Railroad Co. v. Johnson, 101 Pa. 555, the court below was requested to charge the jury that the proper measure of damages upon failure to perform the contract to fence was the difference in the market value of the farm, with the covenant on the part of the railroad company performed, and with it not performed. The answer was, “ upon a breach of the contract of defendant to keep and maintain a good and substantial fence on both sides of the line of its road through plaintiff’s farm, the measure of damages for such breach is what it would cost to build, keep and maintain perpetually a good substantial fence on both sides of defendant’s railroad through plaintiff’s farm the length of about 280 rods. In arriving at such measure, it would be a safe rule to capitalize the annual expense; that is to say, what gross sum would produce annually the amount it would cost annually to maintain and keep in repair the fence in question.” In affirming the judgment the Supreme Court said: “Whether the land was good or bad, or whether the farm was great or small, the question, and the only question, was, what would be the cost of the maintenance perpetually of 280 rods of fence:” Wood v. Sharpless, 174 Pa. 588. That case related to the maintenance and proper repair of the fences then upon the land. In this case we have the added element of damage in the cost of original construction.

The verdict returned by the jury itemized the damages: Cost of erecting fence, 420 panels at $1.15, $488, and cost of maintenance $660, and cost of repairs $400, or $1,543. Subsequently all over $951 was remitted by the plaintiff and the judgment was entered for the amount represented by the two first items, the erection and maintenance of the fence. These items were justified by the evidence and the rule adopted by the court and jury is in accordance with cases above cited.

The judgment is affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Perna v. McFadden, Appellant.

      Contract — Building contract — Liquidated damages — Affidavit of defense.

    In an action by a contractor against the owner to recover a balance alleged to be due on a building contract, where it appears that the contract provided that the contractor should pay as liquidated damages $1.00 per day for each day of delay in the completion of twelve houses, an affidavit of defense which claims to set off damages for delay for forty days in completing the twelve houses, is insufficient if it fails to state how many houses were finished within the time limit, wherein was the contract unfinished, and what, if anything, was done by the defendant to remedy the delay caused by the plaintiff’s alleged default.
    Argued Dec. 12, 1906.
    Appeal, No. 208, Oct. T., 1906, by-defendant, from order of C. P. No. 1, Phila. Co., June T., 1906, No. 8,483, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph Perna v. Cornelius F. McFadden.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due on a building contract.
    The portion of the affidavit relating to the set-off for liquidated damages and interest, is as follows :
    That the contract sets forth on its face that the work was to be completed in two weeks from the date of < signing of contract. That as the contract was signed on May 2, 1906, the work therein provided for should have been completed on May 16, 1906, but in point of fact and according to the statement filed it was not completed until June 25,1906, which was forty day’s after the date agreed upon. And it was further provided in said agreement that said Perna should be liable to a penalty of $1.00 per day for each house for each dayr’s delay, as liquidated damages, so that this deponent is entitled to retain out of any money due or to become due the said plaintiff the sum of $480 for his delay in completing the work, the said amount being $1.00 per day per house for twelve houses and for forty days.
    Defendant further says that by the delay caused as aforesaid by the failure of the plaintiff to complete the work within the time agreed upon, this deponent was put to great additional loss and expense as all other work had to wait until the cellars and foundations were completed by the plaintiff and during all that time the amount of interest charged against this deponent and paid by him (the interest on $84,000 for forty days making $560) could have been avoided had the plaintiff completed his contract within the time specified therein.
    The order of the court was as follows :

      February 25, 1907:
    September 19, 1906, rule absolute for §782.27, with interest thereon.
    September 22, 1906, damages assessed at §734.25.
    The affidavit is insufficient in its claim to set off the forty days’ penalty of §12.00 a day, because it does not aver that twelve houses were not completed. The claim for interest charges is not authorized by the contract.
    Defendant appealed.

      Error assigned was the order of the court.

      P. E. Carroll, for appellant.

      Henry K. Pries, for appellee.
   Opinion by

Beaver, J.,

Plaintiff claimed a balance of §1,098.86 from defendant, upon a contract for excavation and stone work of certain houses in the city of Philadelphia, under an agreement in writing, a copy of which is attached to the statement. A paragraph of said •contract which relates to liquidated damages is as follows:

“ The said party of second part further promises, and agrees to push the work vigorously and to keep pace with the other work, to the satisfaction of the party of the first part, and agrees to pay the sum of one dollar per house for each day’s delay as liquidated damages until such delay shall cease, and directs the same shall be deducted from any cash payment that shall be due, will be due, or is to become due by virtue of this contract. And should such delay continue for more than five days, then the said party of the first part to have the right to assume charge of and sublet or relet all or any part of the above work or furnish the material and labor and set other men to do the work, and charge the cost thereof against any balance that may be due, will be due, or is to become due by virtue of this contract, for the work done, or to be done, or material furnished, or to be furnished, as above stated.”

The affidavit of defense filed by the defendant expressly denies the accuracy of the measurement of both excavation and stone work for which the plaintiff claims, and further claims, as a set-off, items of lumber, steel bars, and removing rubbish and dirt, amounting to $88.00. The defendant also claims penalty for delay, as provided in contract, $1.00 per house per day, for forty days — $480; interest on $84,000 for forty days— $560, under averments contained in the affidavit of defense as follows:

“ That the contract sets forth on its face that the work was to be completed in two weeks from tbe date of signing of contract. That as the contract was signed on May 2, 1906, the work therein provided for should have been completed on May 16, 1906, but in point of fact and according to the statement filed it was not completed until June 25, 1906, which was forty days after the date agreed upon. And it was further provided in said agreement that said Perna should be liable to a penalty of $1.00 per day for each house for each day’s delay, as liquidated damages, so that this deponent is entitled to retain out of any money due, or to become due, the said plaintiff, the sum of $480, for his delay in completing the work, the said amount being $1.00 per day per house for twelve houses and for forty days.

“ Defendant further says that by the delay caused as aforesaid by the failure of the plaintiff to complete the work within the time agreed upon, this deponent was put to great additional' loss and expense, as all other work had to wait until the cellars and foundations were completed by the plaintiff, and during all that time the amount of interest chax-ged against this, deponent and paid by him (the interest on $84,000 for 40 days, making $560) could have been avoided, had the plaintiff 'completed his contract within the time specified therein.”

The court below adjudged the affidavit of defense sufficient as to the items first above mentioned, aggregating $366.59, axxd entered judgment for $732.27. The affidavit was deemed insufficient as to the items last mentioned, naxnely, for delay in the completion of bouses under the coxrtract, and interest on $84,000 for forty days.

As to the last item, it is very clear that, if the penalty provided in the contract is liquidated damages, as therein set forth, none other would be recoverable under the agreement. The question, therefore, is as to the sufficiency of the affidavit of. defense in regard to this penalty. The claim is for $12.00 per day for forty days. The agreement, however, provides for the payment “ of $ 1.00 per house for each day’s delay, as liquidated damages, until such delay shall cease.” How many houses were finished within the time limit provided for in the contract ? The defendant fails to set this forth. It would be manifestly unfair to claim for the delay, if eleven houses were finished and but one unfinished. Wherein was the contract unfinished? The defendant does not state. It would be possible, for anything which appears in the affidavit to the contrary, that the twelve houses might have been finished, with a single inconsiderable item, which the plaintiff could have remedied under his contract, which enables him after five days’ delay “ to assume charge of and sublet or relet all or any part of the above work, or furnish the material and labor and set other men to do the work, and charge the cost thereof against any balance that may be due,” etc. Having the right to do this, did he do it ? If so, the cost of doing it would have been the proper measure of damages. What -was finished, as to the number of houses and ihe extent of the work to be done, at the end of the contract period, should have been specifically set forth. What remained unfinished should also have been specified. What, if anything, was done by the defendant to remedy the delay caused by the plaintiff’s alleged default should have been specifically set out. The defendant’s affidavit of defense is, in these respects, indefinite and unsatisfactory. It was impossible for the court below, under its terms, to determine what, if anything, was due, as liquidated damages, under the clause of the contract providing therefor. It follows that the defendant had the benefit of his affidavit of defense, so far as it was an accurate and sufficient denial of the plaintiff’s claim.

Judgment affirmed, without prejudice to the right of the plaintiff to proceed for the balance of his claim, as to which the affidavit of defense was regarded as sufficient.


text:
    Ludwig Piano Company v. Browne, Appellant.

      Replevin — Possession—Demand—Damages.
    There is good ground for an action of replevin where property is shown in the plaintiff, and a refusal on the part of the defendant to deliver it upon demand.
    Where a piano company places a piano in a house in order to secure either a lease or a sale through the wife, and this is done in spite of the remonstrances of the husband, it should not, in an action of replevin to recover possession of the piano, be permitted to charge the defendants with damages arising from the reasonable use of the piano up to the time of the demand for its return.

      Appeals — Assignments of error — Charge.

      An assignment of error in the following form violates rule 15: “The learned trial judge erred in submitting the case to the jury, in contradiction to the plaintiff’s theory.”
    The refusal of a nonsuit is not assignable for error.
    Detached portions of the charge assigned for error will not be considered, where it is impossible to determine, from the assignments themselves, what the judge decided as to any of the several questions involved.
    Argued Oct. 13, 1906.
    Appeal, No. 223, Oct. T., 1906, by defendants, from judgment of C. P. No. 3, Phila. Co., March T., 1902, No. 2,255, on verdict for plaintiff: in case of The Ludwig Piano Company v. Charles A. Browne and Mrs. Charles A. Browne.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, J J.
    Affirmed conditionally.
    Replevin for a piano.
    Before McMichael, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for the piano and $100 damages.

      JErrors assigned were in the following form:
    1. The learned trial judge erred in refusing defendants’- motion for a nonsuit.
    2. The learned trial judge erred in submitting the case to the jury in contradiction to the plaintiff’s theory.
    3. The learned-trial judge erred in charging the jury as follows : “ But in reaching a conclusion it is well to look upon those matters as matters of common sense, and I do not see how you can give a verdict under the evidence for the de fendants.”
    February 25, 1907:
    4. The learned trial judge erred in charging the jury as follows : “ If you think the plaintiff is entitled to damages for detention, it is entitled to a verdict for $100.
    5. The learned trial judge erred in charging the jury as follows: “ I was reminded of that saying of one having the penny and the cake both.”
    6. The learned judge erred in charging the jury as follows: “ If, on the other hand, you think that the piano was put there against the wish of Mr. Browne and of Mrs. Browne.”

      A. B. JRepetto, for appellants.
    — The plaintiff is not entitled to damages for detention: Segelbaum v. Ensminger, 117 Pa. 248.
    The contract to pay storage may be implied: Grove v. Barclay, 106 Pa. 155.

      Charles K. Westbrook, for appellee.
   Opinion by

Beaver, J.,

The action here is replevin. That the ownership of the piano, which is the subject of controversy, is in the plaintiff is not denied. It is practically uncontradicted that the piano was delivered at the house of the defendants under an arrangement with Mrs. Browne, by which a lease or a sale was expected to follow. That there was a persistent refusal to deliver the piano to the plaintiff, upon repeated demands, is abundantly proved and is practically not denied. If there were nothing else in the case, the refusal of the defendants to deliver the piano, except upon the payment of storage, would of itself be evidence of that refusal. We have, then, property in the plaintiff and a refusal on the part of the defendants to deliver it upon demand. This is good ground for an'action of replevin.

The specifications of error are six in number.

The first assigns for error the refusal of “ defendants’ motion for a nonsuit.” This is not assignable for error: Davis v. Ins. Co., 5 Pa. Superior Ct. 506, and cases there cited.

The second — “ The learned trial judge erred in submitting the case to the jury, in contradiction to the plaintiff’s theory ” — is not a proper assignment under our Rule XY, which requires- that “ When the error assigned is to the charge of the court, or to answers to points, or to findings of fact or law, the part of the charge, or the points and answers, or findings referred to, must be quoted totidem verbis in the assignment.” This assignment gives us no information as to the manner in which the judge submitted “ the case -to the jury, in contradiction to the plaintiff’s theory.” It cannot, therefore, be considered.

The third, fifth and sixth assignments detach single sentences and a part of a sentence from their context and assign them for error as follows: in the third: “ But in reaching a conclusion it is well to look upon those matters as matters of common sense and I do not see how you can give a verdict under the evidence for the defendant; ” in the fifth : “ I was reminded of that saying of one having the penny and the cake both; ” in the sixth : “ If, on the other hand, you think that the piano was put there against the wish of Mr. Browne and Mrs* Browne.” None of these assignments convey any adequate idea of what the judge decided, nor of his disposition of any question of law involved. They, of course, meant something in their proper connections, but, disjointed and detached as they are, it is impossible to determine, from the assignments themselves, what the judge decided as to any of the several questions involved. It was said by Mr. Chief Justice Sterrett, in Irvin v. Kutruff, 152 Pa. 609: “It is always unsafe as well as unfair to the trial judge to select a single sentence from the body of his charge, sever it from the context and undertake to construe it by itself, without regard to what he may have said in the same connection, or in other portions of his charge.” See also Brinton v. Walker, 15 Pa. Superior Ct. 449; Cox v. Wilson, 25 Pa Superior Ct. 635. These specifications of error are, therefore, also disregarded.

The fourth specification is : “ The learned trial judge erred in charging the jury as follows : ‘If you think the plaintiff,is entitled to damages for detention, it is entitled to a verdiet for one hundred dollars.’ ” This was equivalent to binding instructions for the plaintiff, fixing the amount of damages. This we think was erroneous. The question involved was one of fact; it depended upon oral testimony; it was clearly for the jury; it was undoubtedly their province to determine the credibility of the witnesses and, under proper instructions from the court as to the measure of damages, the amount to which the- plaintiff was entitled.

The circumstances under which the piano was originally placed in the house of the defendants were peculiar. The plaintiff company (evidently assumed the risk of securing either a lease or a sale through the wife, in spite of the remonstrances of the husband. Whilst the defendants were not thereby justified in refusing to deliver the plaintiff’s property upon demand, at the same time the plaintiff company did not occup}r such a vantage ground, legal or equitable, as to entitle it to any unusual consideration at the hands of a jury, much less to binding instructions. It expected the piano to be used, when it was placed upon the defendants’ premises; it could expect nothing else, because by its use a sale or lease was to be effected. Why, then, should defendants be charged with damages arising from reasonable use at least to the time of the first refusal to deliver upon demand ?

In view of the expense of another trial, we think this is a case in which the authority vested in us, by virtue of section eight of the Act of June 24, 1895, P. L. 212, to “ affirm, reverse, amend or modify any order, judgment or decree as it (we) may think to be just,” should be exercised. In order, therefore, to do substantial justice between the parties and to avoid the time and expense of further litigation, it is ordered, adjudged and decreed that the judgment of the court below in this case be affirmed, provided the plaintiff (the appellee here) shall within thirty days after the return of the record to the court below, file in the office of the prothonotary of said court a receipt or remittitur for the entire amount of the judgment rendered therein and the interest thereon, except the sum of one dollar for which amount as nominal damages the said judgment may remain; otherwise judgment reversed and a new venire awarded; the costs in this court in either event to be paid by the appellee.


text:
    Zirkman v. Philadelphia & West Chester Traction Company, Appellant.

      Negligence — Street railways — Roads—Obstruction of highway.

    In an action against a street railway company to recover the loss of a horse, a judgment on a verdict for plaintiff will be sustained where the evidence for plaintiff although contradicted, tends to show that the defendant, at the place of the accident piled ballast three or four feet beyond its tracks on the public highway, that the highway at this point was hardly wide enough for two teams to pass, and that plaintiff in permitting a heavily loaded team to pass, was compelled to drive upon the stones, and that the loose stones caused his horse to' fall and sustain the injuries for which the suit was brought.
    Argued Nov. 20, 1906.
    Appeal, No. 95, Oct. T., 1906, by defendant, from judgment of C. P. Chester Co., Jan. T., 1906, No. 16, on verdict for plaintiff in case of Richard Zirkman v. Philadelphia & West Chester Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for loss of a horse.
    Before Hemphtll, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $159.29. Defendant appealed.
    ' Error assigned was in refusing binding instructions for defendant.

      Alfred, P. Reid, for appellant.
    — If there is no evidence which alone would justify the inference of the disputed fact, it ought not to go to the jury: Howard Express Company v. Wile, 64 Pa. 201; Mutual Protection Life Ins. Company v. Laury, 84 Pa. 43.

      3. D. Ramsey, for appellee.
    — If the obstructions were, as claimed by the appellee, they narrowed the traveled roadway —had existed for some time; there was ample room where stone might have been stored, on the line of the railway, and they were of a character liable to cause accident and render the wrongdoer responsible for injuries resulting therefrom: Born v. Plank Road Co., 101 Pa. 334; Gates v. Penna. R. R. Co., 150 Pa. 50; Stanton v. Traction Co., 11 Pa. Superior Ct. 180; Barnes v. Railway Co., 26 Pa. Superior Ct. 36.
    February 25, 1907:
    The evidence consists in the express declarations of the plaintiff of the fact in dispute, and even if the testimony was contradicted, or uncorroborated, the jury must decide : P., W. & B. Railroad Co. v. Alvord, 128 Pa. 42 ; Bucklin v. Davidson, 155 Pa. 362.
   Opinion by

Orlady, J.,

The defendant operated a trolley road between Philadelphia and West Chester, which occupied part of the public highway. Its roadbed was so constructed as to raise its tracks about nine inches above the surface of the highway, and from the outer edge of its tracks there was a gradual slope down to the level of the road used by the traveling public, so as to leave a highway accessible to the traveling public, at the place where the accident happened, only about eight or nine feet in width, as shown by the plaintiff, but about eighteen feet in width as testified to by the defendant’s witnesses. The authority for superimposing upon a public highway a construction of such width and elevation as to withdraw from public use that niuch of the highway, does not appear; and it is not necessary to pass upon that phase of the case in disposing of the assignments of error in this record. The appellant urged, in a point presented to the court for instruction to the jury, that: “ There is no evidence of negligence by the defendant in this case, which caused the accident,” which was refused, and the question of the defendant’s negligence was submitted to the jury in a fair and adequate manner. The plaintiff testified that the trolley roadbed was eight to ten feet wide, so as to make the roadway for public travel very narrow, hardly wide enough for two teams to jiass, and that the company for a long distance along its line had dumped gravel or loose ballast by the side and beyond its tracks a space of three or four feet into the highway proper, and of a height of two or three feet. To permit a heavily loaded wagon to pass him he was obliged to force his horse and one side of his wagon upon the pile of ballast, and in getting the horse from the pile of loose stone the accident was caused by the loose stone sliding and rolling further into the road.

The location and character of the pile of ballast, and whether it was an obstruction to public travel, were facts depending upon conflicting oral testimony, which was properly submitted to the jury.

The judgment is affirmed.


author: Henderson, J.,

text:
    Bernstein v. Hirsch, Appellant.

      Accord and satisfaction — Payment—Tender—Condition.
    Where in case of dispute a payment is offered as payment in full, the party to whom it is made must refuse or accept it on the condition involved in the tender. If he accepts the payment the condition upon which it was made goes with it. It is necessary that the money be offered in satisfaction of the account, and that the offer be accompanied with such a declaration as is equivalent to a condition that if the payment is accepted it shall be a satisfaction. The party to whom the offer is made must be informed at the same time it is to be a full settlement of the account..
    Where money is sent by a debtor to a creditor to apply on a disputed claim, with notice that it is to be in full settlement of a larger demand, the debtor will be discharged if the creditor receive the money.
    Argued Dec. 13, 1906.
    Appeal, No. 216, Oct. T., 1906, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1906, No. 196, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Bernstein and William Kaufman, Copartners, trading as Bernstein, Kaufman & Company, v. Angelo Hirsch, Herman Hirsch and Felix Hirsch, Copartners, trading as G. Hirsch’s Sons.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for balance of account.
    The opinion of the Superior Court states the case.

      February 25, 1907:

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

      O. E. Blaclcburne, with him Bamberger, Levi Mandel, for appellant.
    — If, pending the adjustment of a disputed liability, the debtor transmit money to his creditor as a payment in full of the demand, the creditor may not recover and retain the money as. a credit upon a larger sum claimed by him, without discharging the debtor as to the whole: Washington Nat. Gas Co. v. Johnson, 123 Pa. 576; Holt v. Pie, 120 Pa. 425 ; Mechanics’ Bank v. Huston, 11 W. N. C. 389; Martin v. Frantz, 127 Pa. 389.

      Benjamin Alexander, for appellees.
    — The case at bar is ruled by the recent case of West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642.
   Opinion by

Henderson, J.,

The plaintiffs’ action was for goods sold consisting of lace belting. The affidavit of defense alleges that the goods delivered from time to time were not satisfactory; that repeated complaints were made because of the inferior quality of the merchandise, and that on March 26, 1906, the plaintiffs having rendered a bill to the defendants amounting to $436.50 for several consignments of goods, the defendants sent to the plaintiffs their 'check for $294.44, and at the same time returned to the plaintiffs 1420|- yards of the lace at ten cents a yard, amounting in value to $142.06, which amounts covered the whole of the plaintiffs’ bill. With the check the defendants sent a letter to the plaintiffs informing the latter that they inclosed the check and returned the goods in settlement of the account. The letter called the attention of the plaintiffs to the fact that the defendants had frequently complained of the quality of the goods, and restated the grounds of their complaint and their reason for returning the goods and sending' the check in settlement of the claim. The check and merchandise were retained by the plaintiffs, by reason of which the defendants allege an accord and satisfaction. If the transaction occurred as stated by the defendants it is evidence of an accord tendered on a disputed claim and an acceptance by the plaintiffs from which an accord and satisfaction might be found. Where, in case of dispute, a payment is offered as payment in full, the party to whom it is made must refuse it or accept on the condition involved in the tender. If he accept the payment the condition upon which it was made goes with it. It is necessary that the money be offered in satisfaction of the account, and that the offer be accompanied with such a declaration as is equivalent to a condition that if the payment is accepted it shall be in satisfaction. The party to whom the offer is made must be informed at the same time it is to be in full settlement of' the account. Where money' is sent by a debtor to a creditor to apply on a disputed claim, with notice that it is to be in full settlement of a larger demand, the debtor will be discharged if the creditor receive the money: Gas Co. v. Johnson, 128 Pa. 576; Ziegler v. McFarland, 147 Pa. 607; Christman v. Martin, 7 Pa. Superior Ct. 568. ’ When the defendants sent their check to the plaintiffs they had a right to prescribe the condition on which it was to be received. It is the right of one paying money to direct its appropriation and to make a payment conditional on the recognition of a claim for set-off. This is what the defendants allege they did. The averment is positive that the check was tendered in settlement of the whole account at the time the defective goods were returned. This raises a question of fact for the consideration of a jury. The appellees rely on West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642, as an authority in support of their contention. That case turned, however, on the fact that neither the check nor the letter-accompanying it contained any notice, indorsement or memorandum that the check was sent in full of all claims, or in full settlement of the account, or that it was to be accepted in connection with the statement of account accompanying it. The facts of that case lacked the essential element of notice by the payer to the payee that the check was tendered in full settlement of the claim. Here, however, as is alleged and proposed tobe proved, the plaintiffs had notice that this tender was made in settlement of the account. And if so made, and the plaintiffs knew it was so made and retained the check, the defendants have a right to a trial by jury.

The defendants contend further that the transactions between the plaintiffs and defendants constituted a bailment; that the defendants furnished materials manufactured by the plaintiffs, and that they were not entitled to recover as for goods sold. It does not appear from the affidavit whether the defendants furnished all the material used in the manufacture of the lace, nor is the contract between the plaintiffs and defendants set forth. The subject is not presented in a form which permits us to determine that question here. On the question of accord and satisfaction, the affidavit presents an issue which should carry the case to a jury.

The judgment is therefore reversed and a procedendo awarded.


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

      Jury — Grand jury — Jury wheel — Sealing wheel.

    Where it is necessary to draw a grand jury as soon as the wheel is filled, it is not required of the sheriff and the jury commissioners to go through the form of locking and sealing the wheel, and at once reopening it. The object of sealing the wheel is to preserve it from interference with by unauthorized persons between the time when the wheel is filled and a later date when it becomes necessary to open it for the purpose of drawing a jury.
    All presumptions are in favor of the validity of the action of the jury commissioners and sheriff.
    Where there is nothing to indicate that the jury list was not truthfully certified, the fact that the jury commissioners signed the certificate in blank, and that the names of the jurors were filled in under the direction of the jury commissioners from a proper list is not sufficient basis for quashing the array.
    Argued Dec. 10, 1906.
    Appeal, No. 16, Jan. T., 1907, by defendant, from order of Q. S. Luzerne Co., Jan. T., 1906, No. 57, refusing to quash the array of grand jurors in case of Commonwealth v. H. IT. Hughes.
    Before Rice, P. J., Porter, Henderson, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Indictment for collecting taxes not assessed.
    Before Halsey, J.

      February 25, 1907:
    At the trial a motion to quash the indictment was made and overruled.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in refusing to quash the indictment.

      John T. Lenahan, with him Thomas W. Hart and Michael H. McAniff,iox appellant,
    cited: Brown v. Com., 73 Pa. 321; Ins. Co. v. Adams, 110 Pa. 553; Rolland v. Com., 82 Pa. 306; Curley v. Com., 84 Pa. 151.

      John D. Earnham and B. It. Jones, district attorney, for appellee,
    cited : Com. v. Delamater, 2 Pa. Dist. Rep. 562; Brown v. Com., 73 Pa. 321; Curley v. Com., 84 Pa. 151; Ins. Co. v. Adams, 110 Pa. 553.
   Opinion by

Henderson, J.,

The first assignment of error complains of the action of the court in refusing to quash the array of grand jurors. The reasons in support of the motion insisted upon in the argument are: (1) that one of the jury commissioners did not place his seal on the jury wheel after the same was closed before the grand jury which found the indictment was drawn; (2) that the panel of grand jurors was not the original panel made by the jury commissioners. Testimony was taken in support of the motion to quash, from which it appears that the jury wheel was filled by the jury commissioners and one of the judges on November 27, 28 and 29, and that on the latter date after the wheel had been filled the grand jury was drawn, the jury commissioners, their clerk and the sheriff being present. Whether any seals were attached to the jury wheel before the grand jury was drawn does not clearly appear. The appellant contends that the evidence shows that the seals of the sheriff and one of the jury commissioners were attached, but that the other jury commissioner did not affix his seal because he did not have it with him. It does appear, however, that the jury wheel remained in the presence and custody of the jury commissioners from the time the filling of tbq wheel was completed until the grand jury was drawn. The 90th section of the Act of April 14, 1834, P. L. 333, provides that after the completion of the selection of jurors and the depositing of their names in the wheel the sheriff shall cause the same to be locked and secured by sealing wax, upon which the sheriff and the commissioners are required to impress distinctly their respective seals. This requirement has obvious reference to the preservation of the wheel from interference by unauthorized persons between the time when the wheel is filled and a later date when it becomes necessary to open it for the purpose of drawing a jury. In the case under consideration the exigency of a venire made it necessary that a grand jury be drawn for the next term of the criminal courts as soon as the wheel was filled. In view of this necessity the commissioners proceeded at once to draw the jury. As this act immediately followed the filling of the wheel it was not necessary that the sheriff lock and that the commissioners and sheriff seal the wheel and at once reopen it. The jury commissioners are intrusted with the custody of the wheel and are authorized to open it from time to time as they may be required to do by order of the courts. It would have been a useless act to seal and immediately open. Such a formality would not tend to secure the integrity of the wheel nor promote the uncorrupted administration of justice. What occurred in the matter of sealing the wheel after the grand jury was drawn is not material to the present inquiry. If the jury commissioners acted in conformity to the law in performance of their duties up to and including the time when the grand jury was drawn the defendant is not in a situation to complain that there was afterward a defective sealing of the wheel.

The venire and sheriff’s return are not printed, but it may be inferred from the argument of the appellant that they are regular in form. All presumptions, therefore, are in favor of the validity of the action of the jury commissioners and sheriff. It is not suggested that the panel returned by the sheriff contains names not drawn by the commissioners, nor is there any evidence that it does hot contain the names actually drawn and delivered to the sheriff. There is no statute requiring that the first list of the names of the jurors drawn shall be furnished by the jury commissioners to the sheriff. Section 109 of the Act of April 14,1834, P. L. 333, prescribes the form of the writ of venire. The sheriff is therein directed to summon the persons whose names shall be drawn and to make return of the names and surnames of the persons so summoned in a panel annexed to the writ. This panel is a list of the names of jurors drawn by the jury commissioners. It appears from the evidence that the blanks upon which were written the lists of jurors as required by the 122d section of the act of 1834 were signed by the jury commissioners before the names were written thereon. It also appears, however, that the names of jurors were filled in under the direction of the clerk of the jury commissioners from a list made out by him at the time the jury was drawn and that the lists certified were' correct. The act of the jury commissioners in signing the certificate in blank is not to be commended. It would be the orderly way to attach the certificate after the names had been written, but there is nothing in the case to indicate that the list was not truthfully certified; nor is there anything to show that the jury was not drawn as set forth in the sheriff’s return to the writ of venire. There is some confusion in the use of the words “ venire ” and “ panel ” in the evidence and it is not clear whether either of the lists certified by the jury commissioners was received by the sheriff. It does clearly appear, however, that he had a list of the jurors and that it contained the same names as the list returned by the commissioners to the clerk of the court of quarter sessions. The appellant has not satisfied us that any such irregularity existed as would have justified the court in quashing the indictment.

The judgment is, therefore, affirmed and the record remitted to the court below that the sentence may be executed according to law.


author: Porter, J.,

text:
    Frank, Appellant, v. McCrossin.

      Ground rents — Taxes—Payment—Assumpsit.
    Where an owner of land charged with a ground rent fails to pay the taxes assessed on the land, and subsequently defaults on the ground rent, and the owner of the ground rent obtains judgment for the arrears of rent, and at a sheriff’s sale under the judgment buys in the land, and in order to save the property, pays „the arrears of taxes, he may in an action of assumpsit against the former owner recover the amount of the taxes which the former owner should have paid..

      February 25, 1907:
    Argued. Dec. 12, 1906.
    Appeal, No. 210, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1906, No. 1,462, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philip Frank v. Thomas F. McCrossin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover amount of taxes paid by plaintiff.
    The opinion of the Superior Court states the case.

      Frror assigned was the order discharging rule for judgment for want of a sufficient affidavit of defense.

      Stanley Fofa, with him Leon IL Fofa, for appellant.
    — Whenever a person, by reason of being legally bound, or in order to protect his own interest, has paid the debt of another, which as between himself and that other the latter is bound to pay, the person paying may recover the amount so paid in an action of assumpsit, founded on the implied promise of the defendant to reimburse him: Hogg v. Longstreth, 97 Pa. 255; Caldwell v. Moore, 11 Pa. 58; King v. Bldg. Assn., 106 Pa. 165 ; Bldg. & Loan Assn. v. Webb, 12 Pa. Superior Ct. 545 ; Fidelity Ins.,'etc., Co. v. Bldg. & Loan Assn., 17 Pa. Superior Ct. 270; Landreth v. McCaffrey, 17 Pa. Superior Ct. 272; Theobald v. Sylvester, 27 Pa. Superior Ct. 362.
    The convenant to pay taxes runs with the land: Smith’s Leading Cases, vol. 1, p. *68.
    No appearance nor printed brief filed for appellee.
   Opinion by

Porter, J.,

The plaintiff filed a statement, in this action of assumpsit, which averred the following facts material to the question presented by this appeal: Charles C. Moore, on September 26, 1893, granted and demised the premises, No. 2101 Monmouth street, in the city of Philadelphia, to Albert Kirn, his heirs and assigns, reserving a yearly ground rent of $120. The deed contained covenants by Kirn, for himself, his heirs and assigns, to pay the yearly ground rent of $120, to pay all taxes thereafter to be assessed upon the land, as well as upon the ground rent charged by the deed thereof, and to pay the principal of said ground rent, $2,000, in redemption of the rent, at the expiration of five years from the date of the deed, and that, in default of said payment, “ the said sum shall be forthwith recoverable by the grantor, his heirs and assigns, against the grantee, his heirs and assigns, with all the arrears of the said ground rent, and first payable out of the proceeds of the sale of said premises under any judgment for the said principal sum,” etc. Moore conveyed the ground rent, on December 28, 1893, to the plaintiff. The title to the land and house thereon, subject to the ground rent, became vested, on July 1,1897, in the defendant, whose deed was duly registered and recorded on July 7, 1897, and he continued in possession of the property and received the rents thereof from that date until the sheriff’s sale below mentioned. While the defendant was the registered owner of the land and receiving the rents of the house, the taxes for the years 1901,1902,1905 and 1906 were duly assessed by the city of Philadelphia against the said property and McCrossin as the owner thereof, which taxes aggregated the sum of $151.67, and they were not paid by the defendant. Default having been made by McCrossin in payment of the principal sum of the rent reserved, at the expiration of five years from the date of the deed, and, also, in the installment of rent which became due on October 21, 1905, the plaintiff brought an action under the covenants of the deed, in the court of common pleas, No. 2, of Philadelphia county, duly recovered a judgment against both Albert Kirn, the covenantor, and Thomas F. McCrossin, his alienee, and, as expressly authorized by the deed, caused the land to be sold at sheriff’s sale, the plaintiff himself becoming the purchaser. The amount realized from the sale of the land at sheriff’s sale was not sufficient to pay any part of the taxes above mentioned. The plaintiff, as the new owner of the land which remained subject to the lien of the taxes, was compelled to pay the same in order to save his property, and for the recovery of the amount so paid brings this action. The defendant filed an affidavit of defense which denied none of the material facts set forth in the statement, but alleged that upon this state of facts the plaintiff was not entitled to recover. The court below discharged a rule for judgment for want of a sufficient affidavit of defense, and the plaintiff appeals.

The defendant took title to the land subject to the ground rent. Kirn, the grantee in the deed which reserved the ground rent, had covenanted “ for himself, his heirs and assigns ” to pay to Moore, his heirs and assigns, the annual ground rent and the principal of said ground rent, $2,000, in five years, and to pay all taxes assessed upon the land. These covenants ran with the land, and could be enforced by the assignees of the original ground landlord against the alienees of the original grantee : Hurst v. Lithgrow, 2 Yeates, 24; Springer v. Phillips, 71 Pa. 60. That the owner of the ground rent was not liable for any part of the taxes in question, even without any aid from the covenants of the deed, is a question which is well settled : Franciscus v. Reigart, 4 Watts, 98 ; Philadelphia Library Company v. Ingham, 1 Wharton, 72. The defendant was the real owner and in actual possession of the property at the time the taxes were levied, and was legally and personally liable to be called on to pay them: Hogg v. Longstreth, 97 Pa. 255. And see as to the personal liability of the defendant for the tax the opinion of Judge Arnold, which was adopted by this court, in Landreth v. McCaffrey (No. 1), 17 Pa. Superior Ct. 272. The defendant held the land as against all the world except the ground landlord by an absolute title, and he could, under the covenants of the deed, extinguish the ground rent by paying the principal and the installment due. Being in possession he had no equity for the attempt to impose payment of the taxes on another person. The defendant failed to pay the taxes, and when the plaintiff enforced the covenants of the deed which created the rent he acquired title to the land, but it remained subject to the lien of the taxes which the defendant ought to have paid. This lien was not only entitled to preference over other liens, but was not discharged by a judicial sale on any other lien, unless the proceeds were sufficient to pay it. Therefore the plaintiff had no alternative but to pay the taxes owing by the defendant or lose the land. The plaintiff had, prior to the sheriff’s sale, an estate in the rent issuing out of the land, but was not liable for the taxes upon the land. The duty to pay the taxes was upon the defendant, who was personally liable for the same. The lawful enforcement of the covenants of the deed which controlled the relations of the estates, of these parties respectively, resulted in vesting the absolute ownership of the property in the plaintiff, but he was compelled to pay taxes for which his predecessor in title was legally and personally liable. When a party is, under such circumstances, compelled, in order to save his property, to pay taxes for which he is not liable, and for which his predecessor in title is legally and personally liable, he may recover the amount so paid in an action of assumpsit: Hogg v. Longstreth, 97 Pa. 255 ; Republic Building & Loan Association v. Webb, 12 Pa. Superior Ct. 545 ; Theobald v. Sylvester, 27 Pa. Superior Ct. 362. The plaintiff’s statement sufficiently averred the facts which entitled him to recover the amount of the taxes, with interest, and the affidavit of defense was insufficient.

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


author: Orlady, J., Morrison, J.,

text:
    Commonwealth v. Pearl, Appellant.

      Criminal law — Fornication and bastardy — Child.
    In a fornication and bastardy case where a child, an infant sixteen months, is in court, and in the presence of the jury, and the district attorney takes it in his arms and comments on its resemblance to the defendant it is not error for the court to say: “In reference to the exhibition of the child, the court will say that the child is here in the case. The prosecutrix says that the defendant is the father of the child. You have seen the child, and while it was not ofiered as an exhibit in the case, it is in the case, and if there is any resemblance between the child and the defendant as he sits at the bar, which is apparent to the jury, the jury is at liberty to take that into consideration.”
    Submitted Oct. 3, 1906.
    Appeal, No. 26, Jan. T., 1907, by defendant, from judgment of Q. S. Carbon Co., Oct. T., 1904, No. 33, on verdict of guilty in case of Commonwealth v. Louis Pearl.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.

      Indictment for fornication and bastardy.
    Before Heydt, P. J.
    After the general charge was concluded counsel for defendant asked the court to charge the jury so far as the remarks of the district attorney were concerned, and as far as taking the baby in his arms and saying it was exhibit “ A,” and calling out the different features and against the objections of the counsel for the defendant, and asked for a dismissal of the proceedings.
    The Court: In reference to that, the court will say that the child is here in the case. Mary Hornyak, the prosecutrix, says that Louis Pearl is the father of the child. You have seen the child, and while it was not offered as an exhibit in the case it is in the case, and if there is any.resemblance between this child and this defendant as he sits at the bar which is apparent to the jury, the jury is at liberty to take that into consideration. Exception. [5]
    Verdict of guilty, upon which judgment of sentence was passed.

      Frror assigned amongst others was above instruction.

      William G. Thomas and Freyman & Nothstein, for appellant. —
    The exhibition to the jury on a prosecution for bastardy of an infant child, for the purpose of showing its resemblance to the defendant, is error: Iowa ex rel. Scott v. Harvey, 52 L. R. A. 500 ; Robnett v. People, 16 Ill. App. 299; Hanawalt v. State, 64 Wis. 84 (24 N. W. Repr. 489).
    It was the duty of the court to supervise the address of the district attorney, and protect the defendant or parties litigant from the injurious remarks'and extremely prejudicial action of the district attorney, and direct the jury to disregard the improper remarks: Com. v. Windish, 176 Pa. 167 ; Holden v. Penna. R. R. Co., 169 Pa. 1; Sheehan’s Est., 139 Pa. 168.

      George F. Gray, district attorney, and Frank P. Sharkey, for appellee.
    — A conviction of bastardy will not be dismissed because counsel for the people in his argument to the jury called .attention to an alleged resemblance between the child and the defendant: People v. Wing, 115 Mich. 698 (74 N. W. Repr. 179); Gilmanton v. Ham, 38 N. H. 108 ; Gaunt v. State, 52 N. J. L. 178 (19 Atl. Repr. 135) ; Scott v. Donovan, 153 Mass. 378 (26 N. E. Repr. 871).
    February 25, 1907:
   Opinion by

Orlady, J.,

The defendant was convicted of fornication and bastardy, and though he prfesents six assignments of error, all but the fifth may well be dismissed as without merit. During his closing address the district attorney toot the child of the prosecutrix in his arms and presented it to the jury, referring to it as exhibit A,” and called the attention of the jury to an alleged resemblance to the defendant. The counsel for the defense made a prompt objection, and requested the court to withdraw a juror, which was refused, and the trial judge concluded his charge to the jury by saying : “ In reference to the exhibition of the child the court will say that the child is here in the case. Mary Hornyak, the prosecutrix, says that Louis Pearl is the father of the child. You have seen the child, and while it was not offered as an exhibit in the case, it is in the case, and if there is any resemblance between this child and this defendant as he sits at the bar, which is apparent to the jury, the jury is at liberty to take that into consideration.”

The exact language used by the district attorney is not brought formally on the record, but the fact that the child was exhibited to the jury, and that an alleged resemblance to the defendant was suggested by that officer in his stating, “ if they are not the ears of the defendant, acquit him,” is conceded, and was so dealt with by the court below in refusing a new trial. We do not have any direct decision on this subject, and the practice varies in different sections of the state. In some counties such an exhibition and comment has always been permitted, and in others it has been as positively condemned.' Nor is the question settled in other states. A large number of cases bearing directly on the subject may be found collated in Wigmore on Evidence, Am. & Eng. Ency. of Law, and other digests, but the arguments adduced and conclusions reached are so conflicting as to leave the question as to which is the better practice uncertain.

While it is conceded that the progeny of persons of a particular race or of distinct types receive from the progenitors certain corporal characteristics which are radically different from the ones transmitted from other races and types, especially with reference to color, hair, features and complexion, yet the evidential value of such distinguishing traits is materially lessened through the intermixing of races, and while it is true in principle as a law of nature that like begets like, there are so many modifying influences affecting the human race that inherited resemblance is at best largely theoretical. It is equally well known that while a child is but a few weeks or months of age, there is always a peculiar immaturity of features which characterizes it as infantile, and that changes of that condition of uncertain and immature development are always expected; while resemblance to a particular person during that transitory stage may be readily imagined by interested parties, it is but rarely more than an imaginary similarity, so fanciful and visionary as to be of no value as an item of substantive proof.

In the trial of such cases the child is usually in court with the mother, and while not technically offered as an item of evidence, is so distinctly subjected to the view of the jurors that it is necessarily in the case, and such a presence cannot be ignored. For this reason it is held by all the English courts, and by a large number in our country, to be a sound rule to admit the inspection of the child by the jury to ascertain whether or not there is any similarity of distinctive and specific trait, provided that the child is, in the opinion of the trial court, old enough to possess settled features or other corporal indications: Wigmore on Evidence, 166. As stated in Sheehan’s Estate, 139 Pa. 168 : “ The alleged resemblance is a circumstance, but a very weak one. But, granting the likeness, it may be the result of the merest chance. We all know that striking likenesses often occur between persons who are not of the same blood, so strong that in many instances that one is taken for another.” This was said in a case dealing with a resemblance in the adult life of a person, and the weight to be given such alleged resemblance is made the more indefinite in this case by the immaturity of the child.

The trial judge recognized the unsatisfactory character of such proof, and also that the child, then sixteen months old, was in the court and before the jury. He fairly submitted the question of alleged similarity to tlie jury by saying, “ if there is any resemblance between the child and this defendant, which is apparent to the jury, the jury is at liberty to take that fact into consideration.” The effect to be given to it, meager and uncertain as it was, like the credibility of witnesses, was for the jury. Special instructions on this matter were not requested, the defendant relying on the proposition that such an exhibition was of itself a fatal error. To this proposition we cannot agree. The case has been tried twice, and the contention of the defendant is answered by many decisions of courts of high character. Under our practice the disposition of the question is one largely within the discretion of the trial judge, and in this instance there is not sufficient on the record to warrant a reversal of the judgment on account of an abuse of such discretion.

The judgment is affirmed.

Morrison, J.,

dissenting:

I cannot consent to the affirmance of this judgment. A careful examination of the evidence convinces me that the defendant made a very strong defense in the court below and that he did not have a fair and impartial trial, and the question here is- whether his conviction ought to be sustained. This is the second time this case has been before us. After his conviction on the first trial, the defendant appealed to this court, and we were compelled to reverse the judgment because the learned court below refused to allow the defendant to prove that he was sick and delirious during the latter part of November and first part of December, 1903, the time when the prosecutrix testified that the illicit intercourse took place with her in the cellar of the house in which she lived: Commonwealth v. Pearl, 29 Pa. Superior Ct. 307.

The prosecutrix testified clearly and pointedly that the illicit connection between her and the defendant took place in the latter part of November and the first part of December, 1903, in the cellar of the house in which she was employed. The date of the birth of the child corresponds with the theory that it was begotten at about the time she states. The defendant proved at the trial by Dr. Laciar, James Pearl, Daniel Searfoss, Mrs. James Pearl and S. Miller that from about the middle of November to the middle of December he was seriously ill with pleuro-pneumonia, and that he was delirious and in a dangerous condition during most of this time. This evidence tended strongly to show that he could not have been in the cellar having illicit intercourse with the prosecutrix at the dates or times fixed by her.

The defendant positively denied that he had illicit intercourse with the prosecutrix as she stated, and she did not pretend that he ever had intercourse with her at any time or place, except in the cellar in the latter part of November and the first part of December, 1903. In addition to this, three witnesses positively testified that the prosecutrix told them, in substance, that the defendant was not the father of her child, but that it was Andrew Unger’s child, and that she wanted to get enough money, or $40.00, from Pearl and go to New York and marry Unger. The prosecutrix was not corroborated in her story that Pearl was the father of her child.

I do not find any merit in the first and second assignments of error. I would sustain the third assignment: The learned court said to the jury: “If you believe from all the testimony in the case that Louis Pearl was sick during that time from November 18 to December 20, 1903, and that he could not have had connection, and did not have connection with the prosecutrix during that time, and also that he did not have connection with her prior to that time or subsequent to that time, then your verdict will be not guilty and you will acquit the defendant.” In my opinion, there is manifest error in this portion of the charge. I have already said that the prosecutrix specifically fixed the illicit intercourse with the defendant during the latter part of November and the fore part of December, and she did not pretend that she ever had illicit connection with him at any other time or place, except in the cellar and at the time stated. Therefore, the learned court erred in plainly telling the jury, in effect, that they might find that the defendant had connection with her prior to or subsequent to the times fixed by herself. As the case was presented by the prosecutrix’s own testimony, the jury should have been instructed plainly to find whether or not defendant had illicit connection with her in the cellar during the latter part of November or fore part of December.

The fourth and fifth assignments should be considered together. The fourth: “ It was error for the district attorney to take the child in his arms and point out the different features of the child to the jury, and draw attention to it and comment on its resemblance to the defendant, when there was evidence of the child’s features in evidence.” The fifth : “ The court erred in the charge to the jury in reference to the remarks of the district attorney (p. 12). The court said : In reference to that the court will say, that the child was in the case. Mary Hornyak;, the prosecutrix, says that Louis Pearl is the father of the child. You have seen the child and while it was not offered as an exhibit in the case, it is in the case, and ,if there is any resemblance between the child and this defendant as he sits at the bar, which is apparent to the jury, the jury is at liberty to take that into consideration.”

The record shows that before the jury retired, counsel for the defendant excepted to the charge of the court and the rulings on the offers of evidence and the remarks of the district attorney excepted to, and asked that the charge of the court and the testimony and the remarks excepted to, be transcribed and filed,.which request was granted by the court.

In considering the fourth and fifth assignments it must be borne in mind that the child was not offered in evidence, nor does it appear that any notice whatever was given during the trial that the district attorney would attempt to argue to the jury that there was a physical resemblance between the child and its putative father, the defendant. A somewhat extended examination of the authorities, by text-writers and the courts of many states, demonstrates that there is a wide divergence of opinion as to whether a young child in a fornication and bastardy case can be exhibited to the jury at all; many of the courts holding that the features and appearance of a young ■child are too indistinct and uncertain to warrant the exhibit of such a child to the jury to corroborate the testimony of the prosecutrix in an action against its putative father.

In State of Iowa ex rel. Scott v. Harvey, 52 L. R. A. 500, the supreme court of Iowa held: “ The exhibiting to the jury in a prosecution for bastardy of a child nine months old, for the purpose of showing its resemblance to the defendant, is error.” In that case the author appends a large number of cases selected from the higher courts of many states and these cases are in marked conflict. I will not here quote them as they may be readily referred to in the authority cited, but one of the cases is so strikingly like the case under consideration that I will refer to it: “ But it is error for the counsel for the state in bastardy proceedings to comment to the jury and draw their attention to an alleged similarity of the child’s ears to the ears of the defendant and his father who is in court also, and in the presence of the jury, in the absence of the child, and without its appearing that the attention of the jury had been before called to such peculiarity: ” Hanawalt v. State, 64 Wis. 84; 54 Am. Rep. 588 (24 N. W. Repr. 489).

In the case under consideration it does not appear that the child was offered in evidence or the jury’s attention called to it until the zealous district attorney, during his argument, took it in his arms and exhibited its ears to the jury, and contended that they closely resembled the defendant’s ears. Even if we take the view that the child was in the case and that the jury was entitled to look at it and determine whether or not it resembled the defendant, I would hold that the conduct of the district attorney was unfair and improper. If he intended to argue that the child resembled the defendant, he should have offered as a part of his case, to exhibit it to the jury, stating his purpose, and thus giving the defendant an opportunity to reply, if he could, to this branch of the case, and giving his counsel an opportunity to make such argument thereon as he saw fit before he closed his case to the jury.

My conclusion, from an examination of Wigmore on Evidence and many other authorities, is that the child, in a prosecution for fornication and bastardy, may be exhibited to the jury, as a part of the commonwealth’s case, in an orderly and'proper manner. So also the defendant might exhibit the child to the jury as a part of his defense, and argue that it did not resemble him. See 2 Wigmore on Evidence, sec. 1168, p. 1369; also 1 Wigmore on Evidence, sec. 222, p. 275; see also Flower v. Ry. Co., 132 Pa. 524.

But, in my opinion, the supposed resemblance between the child and the putative father is not sufficient, standing alone; to support a conviction; The weight of authority seems to be in favor of permitting the exhibit of the child to the jury, in corroboration of other competent evidence, and the clear weight' of authority is that such supposed’ resemblance is uncertain evidence and should be carefully explained and controlled by the court.

In Sheehan’s Est., 139 Pa. 168, I find that our Supreme Court .considered the question of family resemblance (p. 182). It is there said: “ The alleged resemblance of the appellant to Sheehan is a circumstance, but a very weak one. The evidence is conflicting upon this point. But, granting the likeness, it may be the result of the merest chance. We all know that striking likenesses often occur between persons who are not of the same blood; so strong that in many instances the one is mistaken for the other.” See also 3 Am. & Eng. Ency. of Law (2d ed.), p. 885, and also footnotes on same page.

. It was clearly the duty of the court to supervise the address of the district attorney and protect the defendant from injurious remarks, and prejudicial action of that official, and direct the jury to disregard the improper remarks: Commonwealth v. Windish, 176 Pa. 167.

I cannot approve the conduct of the district attorney in exhibiting the child to the jury and commenting upon its resemblance to the defendant, in the manner complained of by the assignments and exception; nor can I agree that the charge of the learned court properly dealt with this branch of the cáse. In view of the fact that the child had not previously been exhibited to the jury, and that the district attorney used it in his closing argument, the learned court ought to have instructed the jury that the appearance of the child was not properly before them, and to disregard its appearance and that portion of the argument, and to determine the case upon the competent evidence.

I would reverse with a new venire.


text:
    Lomasney, Appellant, v. Turner.

      Contract — Nursing—Affidavit of defense.

    Where a person by writing under date acknowledges services rendered to him by a woman for nursing, from a date about a year prior to the date of the writing and agrees in the writing to pay to her therefor the sum of $25.00 per week, but no mention is made in the writing as to the length of time during which the nursing was continued, and the nurse sues to recover and avers that the services continued down to the date of the writing, an affidavit of defense which avers that the services were rendered for a period of five weeks only is responsive to the plaintiff’s claim, and the question whether the services were continued to the date of the writing must be determined by a jury.
    Argued Oct. 10, 1906.
    Appeal, No. 123, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 2,915, discharging rule for judgment for want of a sufficient affidavit of defense in case of Margaret Lomasney v. John W. Turner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for services rendered as nurse.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the facts of the case.
    The court made the rule for judgment absolute for $125, admitted to be due, and discharged the rule for judgment for want of a sufficient affidavit of defense, as to the balance claimed.

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

      Charles S. Wood, for appellant.
    — This affidavit is insufficient: Sanders v. Sharp, 153 Pa. 555; Cochran v. Pew, 159 Pa. 184; Baugh v. White, 161 Pa. 632 ; Kellberg v. Bullock Printing Press Co., 39 Legal Int. 91; Lauber v. Wagner, 11 York, 134; Vito v. Birkel, 209 Pa. 206 ; Lauer v. Oliver, 53 Pitts. Legal Jour. 21.

      William T. Tripple, for appellee.
    — Where a written agreement is silent as to the time during which it is to continue in force, parol evidence is admissible to prove the intention of the parties: Real Estate Title, Ins. & Trust Co. v. Lambeth, 135 Pa. 549 ; Kellberg v. Bullock Printing Press Co., 39 Legal Int. 91.
    February 25, 1907:
   Opinion by

Henderson, J.,

The plaintiff’s action is based upon an obligation signed by the defendant in the following form:

“ Phila April 11th 1904
“ I John Turner hereby acknowledge the services rendered to me by Margaret Lomasney by nursing etc from April 15th 1903 and hereby agree to pay to her therefor the sum of twenty-five dollars per week and hereby bind myself, executors, administrators to pay the same
“ Witness my hand this 11th day of April 1904 ”

This document admits a parol obligation of the defendant to the plaintiff for services as a nurse theretofore rendered. It shows that the services commenced April 15, 1903; it also fixes the weekly compensation to which the plaintiff was entitled, but it is silent upon a material point, to wit: the length of time during which the nursing was continued. The starting point was April 15, 1903, but there is no acknowledgment that the service continued for any particular time. The date of the paper is not the time to which the defendant admits the plaintiff cared for him, but is the time at which he made the written declaration of his obligation to pay. It therefore throws no light on the question when the plaintiff ceased to nurse the defendant. The instrument is not a contract of hiring, but an acknowledgment of an implied or parol agreement for services which had been rendered before this paper was signed. It does contain an undertaking to pay 125.00 a week for the services rendered, but it is not an agreement to pay that amount from- April 15, 1903 until April 11, 1904. So much of the affidavit of defense as denied that the services were rendered for a longer period than five weeks was responsive to the plaintiff’s claim. The defendant was only liable for nursing. The plaintiff alleged in her statement of claim that the services referred to in the paper sued on continued from April 15, 1903, until April 11, 1904. Unless, therefore, the written instrument contains an admission to that effect the defendant is entitled to an opportunity to show that he was cared, fora much shorter time. Giving to all the words of the paper their usual and proper significance it is evident that the defendant is not shut out by a written acknowledgment from showing how long he was cared for by the plaintiff. The question of a contemporaneous parol agreement is not presented under the declaration and the averments in the affidavit. The writing is simply silent as to the time to which it applied and this may be shown by parol: Real Estate Title, etc., Co.’s Appeal, 125 Pa. 549. The cases cited by the appellant show that the construction of written contracts is for the court where there is no omission or ambiguity, or technical words requiring interpretation; but they are not pertinent to the question at issue. The material matter of the duration of the plaintiff’s services must be. established by parol evidence.

The judgment is affirmed.


text:
    Pulaski Avenue.

      Road law — Vacation of streets — Omission of street from plan — Statute of limitations — Estoppel.
    Where the proper authorities in a city of the first class adopt and confirm a new plan of streets from which a portion of a previously existing street is omitted, the confirmation of such plan operates as an immediate vacation of the portion of the street omitted, and the statute of limitations begins forthwith to run against landowners injured by the vacation; and it is immaterial that the street was not actually closed to public use for years thereafter, or that a petition presented by'one property owner was quashed on the mistaken theory of the court below that damages did not accrue until the street was physically closed, and also for want of jurisdiction of the court of common pleas.
    Damage resulting from the vacation of a street is a personal claim to which the owner at the time of the vacation is entitled. Such a claim does not pass by a grant of the land, nor does it run with the land.
    Argued Oct. 17, 1906.
    Appeal, No. 103, Oct. T., 1906, by Emil Wahl Manufacturing Company, from order of Q. S. Phila. Co., June T., 1905, quashing petition for the appointment of viewers In the Matter of the Vacation of Pulaski Avenue from Ruffner Street to Roberts Avenue.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for the appointment of viewers.
    The opinion of the Superior Court states the case.

      Error assigned was order quashing the petition.

      Theodore E. Jenlcins and William W. Staalce, with them Henry B. Patton, for appellant.
    — The petitioner’s claim is not barred by the statute of limitations: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Whitaker v. Phoenixville Boro., 141 Pa. 327; Volkmar Street, 124 Pa. 320 ; Brower v. Phila., 142 Pa. 350; Centre Street, 115 Pa. 247; Eisenhart v. Phila., 154 Pa. 393 ; Howley v. Pittsburg, 204 Pa. 428; Norwood Street, 12 Pa. Dist. Rep. 309.
    Tabor Street, 25 Pa. Superior Ct. 355, and Butler Street, 25 Pa. Superior Ct. 357 (1904), decided that the statute of limitations barred all proceedings for damages for the vacation of a street not begun within six years from the confirmation of a plan omitting the street. It is submitted, however, that the statute of limitations could not begin to run so long as the city retained possession of the street: Freeman on Judgments, sec. 165 ; Hersey v. Turbett, 27 Pa. 418.
    The judgment in Pulaski Avenue, 5 Pa. Dist. Rep. 1, bound all the parties to the proceeding and their privies: Bower v. Tallman, 5 W. & S. 556; Campbell v. Stephens, 66 Pa. 314; Martin v. Ives, 17 S. & R. 364; In re Polsgrove, 5 Pa. 500 ; Kiern v. Ainsworth, 95 Pa. 310 ; Ott v. Kreiter, 110 Pa. 370; Daniels v. Tearney, 102 U. S. 415; Ry. Co. v. McCarthy, 96 U. S. 258 ; R. R. Co. v. Howard, 54 U. S. 307, 335 ; Trutt v. Spotts, 87 Pa. 339, 341; Bliem v. Daubenspreck, 169 Pa. 282; Barnes v. Railroad Co., 27 Pa. Superior Ct. 84.

      John H. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    — The cause of action in this case arose on June 3, 1895, the time when the street was stricken from the plan, and was not postponed until the physical closing up of the street: William Street, 7 Pa. Dist. Rep. 1; Butler Street, 19 Pa. Superior Ct. 48; Carpenter v. Railroad Co., 195 Pa. 160; Wetherill v. Railroad Co., 195 Pa. 156; Morris v. Philadelphia, 199 Pa. 357 ; Penrose Ferry Avenue, 13 Pa. Dist. Rep. 896.
    February 25, 1907:
    The statute of limitations began to run from June 3, 1895 : Tabor Street, 25 Pa. Superior Ct. 355; Butler Street, 25 Pa. Superior Ct. 357.
    Damages being in the nature of a trespass for injury done to the land, do not pass by a subsequent conveyance : Tenbrooke v. Jakhe, 77 Pa. 392; Campbell v. Philadelphia, 108 Pa. 300; Losch’s Appeal, 109 Pa. 72.
    There was no estoppel: Dungan v. American Life Ins. & Trust Co., 52 Pa. 253; Plumer’s App., 11 W. N. C. 144.
   Opinion by

Henderson, J.,

Pursuant to an ordinance of the city of Philadelphia authorizing a revision of lines and grades the board of surveyors (now the department of public works) on June 3, 1895 adopted and confirmed a new plan from which Pulaski avenue between Ruffner street and Roberts avenue was omitted. The effect of this action was an absolute vacation of the omitted portion of Pulaski avenue. It ceased to exist as a street and no further action was necessary to effect the restoration of the vacated portion to the abutting landowners : Wetherill v. R. R. Co., 195 Pa. 156 ; Carpenter v. R. R. Co., 195 Pa. 160; In re Butler St., 19 Pa. Superior Ct. 48. The petition of the appellant out of which this proceeding arose sets forth the action of the board of surveyors and asks for the appointment of viewers to assess damages under the Act of April 21,1858, P. L. 385. This petition, it will be observed, was presented to the court of quarter sessions more than ten years after the street was vacated. We held in In re Tabor St., 25 Pa. Superior Ct. 355, and In re Butler St., 25 Pa. Superior Ct. 357, that the right of action of a party injured by the vacation of a street in Philadelphia arises when the plan vacating the street is duly confirmed, and that after the lapse of six years from such confirmation a claim for damages for such vacation is barred by the statute of limitations; and this relates not to tlie time when the street is actually closed, but to the time when it ceases to be a public street by reason of the action of the proper authorities vacating it on the city plan.' The cases cited by the appellant in support of the position that the right of action begins to run from the time the street is physically closed grew out of the appropriation of land for streets or a change of grade resulting in a physical change of the petitioner’s property. In such cases the possession of the owner is frequently not disturbed until a long time after the action contemplating the change, but in the case of the vacation of a street there is no appropriation of property, no change of grade. The statement in the opinion in Centre St., 115 Pa. 247 quoted in the argument of the appellant’s counsel that there is no difference- in principle in cases of opening and those of vacating streets has no reference to the question when the right of action begins. The subject there under discussion is that of the assessment of benefits, the contention of one of the parties being that there was no provision of law for the assessment of benefits for the payment of damages occasioned by the vacation of streets. The closing of a street is not a municipal act. That may be done by the owners. This is what was done in Carpenter v. R. R. Co., 195 Pa. 160.

There is the further objection to the appellant’s proceeding that it was not the owner of its property at the time the vacation took place. Damages resulting from the vacation of a street is a personal claim to which the.owner at the time of the vacation is entitled. Such a claim does not pass by a grant of the land, nor does it run with the land: Campbell v. Philadelphia, 108 Pa. 300; Losch’s Appeal, 109 Pa. 72; In re Butler St., 25 Pa. Superior Ct. 357. The appellant contends that the city is estopped from maintaining that the vacation took place on June 3, 1895, for the reason that one Thomas P. Cope presented a petition for the appointment of viewers to assess damages on account of the vacation of the street in 1895 and that the city of Philadelphia moved to quash the petition for the reason, among others, that the striking of a street from the city plan was not a vacation of the street and that the court of common pleas thereupon quashed the petition. The court was of the opinion in the case to which the appellant refers that the vacation did not take place until there was a physical closing of the street, but the court also held, that it had not jurisdiction of the subject, which was a conclusive reason for the order entered. It does not appear that there was any acquiescence in the conclusion of the court upon that point by the petitioner or that his counsel acquiesced therein and that the order of the court was made because of such assertion of acquiescence. This misapprehension of the law by the counsel or the court of common pleas would not work an estoppel. All the parties had an equal opportunity to know what the law was. That the court was in error on the question was afterward decided in Wetherill v. R. R. Co., 195 Pa. 156, but Cope was not induced by the city to act to his prejudice or believe that the law was as stated by the city solicitor; and certainly the appellant here has no standing to allege an estoppel, for it does not appear that either he or his predecessor in title appeared in court or took any part in the case then pending. It is further contended that the city of Philadelphia' recognized the existence of the street until February, 1904, by permitting the public and a street railway company to use the avenue ; hy continuing the water mains thereunder; by affording police protection, maintaining the bridges thereon, continuing the lighting of the street and by giving lines and building permits. The answer to this is that the streets of the city are created and vacated in conformity with statutory provisions. After the street was regularly vacated no action of subordinate officials of the city could continue its existence. By the vacation the land was relieved from public servitude as a street. The abutting owners could have closed it; their omission so to do did not remove the limitation of the statute. None of the acts recited in the petition could postpone the vacation which had been effectually accomplished by the action of the board of surveyors on June 8, 1895: Stull’s Appeal, 11 W. N. C. 350; Alcorn v. City of Philadelphia, 44 Pa. 348.

The judgment is affirmed.