author: Rice, P. J.,

text:
    Lutz v. Matthews, Appellant.

      Trusts and trustees — Resulting trust — Deed—Presumption—Evidence.
    Where an owner of land conveys the same in payment of a debt, to a person named by the creditor, and the creditor takes from the grantee cash and a judgment note, no resulting trust in the land is created in the creditor by the transaction.
    A resulting trust of such a nature rests upon presumption merely, and is not one juris et de jure, and is open to rebuttal. It may be rebutted by evidence which satisfactorily shows that it was not the intention of either party that the beneficial interest should be in the party paying; in other words, the presumption will be overcome by proof that it is at variance with the intention or understanding of the parties.
    To establish a trust by parol the evidence must be full, clear and convincing. It is not enough that it satisfies a jury, it must also satisfy the mind and conscience of the court sitting as a chancellor reviewing thé testimony, and if it fails in this respect it must be withdrawn from the jury.

      Deed — Annulment—Cancellation—Rights of third parties.

    In general an estate once vested cannot be divested by mere annulment and cancellation of the deed. The cancellation is but the destruction of the evidence of the title, and not the annulment of the title itself. A fortiori it cannot extinguish rights of third persons that have accrued in the meantime.

      Deed — Recording—Notice.
    A deed not recorded within ninety days after its delivery may prevail against a later deed duly recorded, where the grantees are not purchasers for value, and have full notice of the former deed.

      Execution — Real estate — Possession—Possessory proceeding — Act of April 20, 1905, P. L. 239 — Statutes—Appeal—Local legislation — Constitutional law.

    The Act of April 20, 1905, P. L. 239, relating to possessory proceed-, ings to recover possession of real estate purchased at judicial sales, is a general act, and repeals the Act of May 13, 1871, P. L. 820, relating to Schuylkill county, and is not affected by sec. 8, art. Ill of the constitution, relative to the publication of notice of the intention to apply for the passage of a local or a special bill.

      Constitutional law — Title of statutes — Local legislation — Repeal.
    The repeal of previous acts on the same general subject is always germane to the title of the repealing act.

      Execution — Practice, C. P. — Possessory action — Act of April 20, 1905, P. L. 239.
    A petition under the Act of April 20, 1905, P. L. 239, for the recovery of real estate purchased at a sheriff’s sale, must aver in what manner the person in possession went into possession, or that the manner of his obtaining possession was unknown to the petitioner. If, however, this is not averred, and the defendants appear, answer, make request for jury trial, and plead not guilty, they will be considered to have waived the defect in the petition, and cannot when the case is called for trial move the court to dismiss the petition on that ground.
    Argued Dec. 3, 1907.
    Appeal, No. 20, Oct. T., 1907, by defendants, from judgment of C. P. Schuylkill Co., Jan. T., 1906, No. 187, on verdict for plaintiff in suit of S. O. Lutz v. Michael Matthews et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ. '
    Affirmed.

      Petition under Act of April 20, 1905, P. L. 239, to recover possession of real estate purchased at sheriff’s sale. Before Mark, J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendants appealed.

      Error assigned amongst others was in giving binding instructions for plaintiff.

      J. 0. Ulrich and A. W. Schalck, for appellants.
    The repeal of a local act is itself a local act within the meaning of this section and requires publication of notice in the locality to be affected: Chalfant v. Edwards, 173 Pa. 246; Sugar Notch Borough, 192 Pa. 349.
    The act of April 20, 1905, P. L. 239, is unconstitutional as far as the repeal of the local act is concerned, because it contains more than one subject and the subject of repeal of local legislation is not contained in the title, contrary to sec. 3 of art. Ill of the state constitution: Ruth’s Appeal, 10 W. N. C. 498; Brown’s Estate, 152 Pa. 401; Commonwealth v. Samuels, 163 Pa. 283.
    The deed which Benjamin F. Southam executed in favor of Michael Matthews dated April 5, 1900, but never recorded, was fraudulent and void three months after its date against any subsequent purchaser from Southam for a valid consideration: Hetherington v. Clark, 30 Pa. 393; Fries v. Null, 154 Pa. 573; Berg v. Shipley, 1 Grant, 429; Cover v. Black, 1 Pa. 493; Davey v. Ruffell, 162 Pa. 443; Stewart v. Freeman, 22 Pa. 120; Lightner v. Mooney, 10 Watts, 407; Collins v. Aaron, 162 Pa. 539; Grevemeyer v. Ins. Co., 62 Pa. 340.
    Southam occupied the disputed premises since 1902 and his possession was notice of his title, which he conveyed to Mucklow in 1905. Such possession was notice to Lutz which he could not ignore: Sailor v. Hertzog, 4 Wharton, 259; Rowe v. Ream, 105 Pa. 543; Coleman v. Reynolds, 181 Pa. 317.
    Mucklow paid the full consideration to Southam in 1900, when Southam executed a deed to Matthews, therefore, Mucklow had the equitable title and Lutz had no rights higher than Mucklow: Reed’s App., 13 Pa. 476; Miller v. Baker, 166 Pa. 414; Cadbury v. Duval, 5 Clark, 206; Britton’s App., 45 Pa. 172.

      H. B. Graeff, with him R. J. Graeff, for appellee,
    cited: Perkins v. Philadelphia, 156 Pa. 554; Com. v. Moir, 199 Pa. 534.
    October 12, 1908:
   Opinion by

Rice, P. J.,

This case arose in a proceeding by a purchaser at a sheriff’s sale to obtain possession of the premises under the Act of April 20,1905, P. L. 239. The case was tried before a jury and resulted in a verdict for the plaintiff directed by the court and judgment thereon. The questions raised by the assignments of error will appear as we proceed.

In April, 1900, Benjamin Southam was the owner of the land in dispute. Being indebted to the Messrs. Mucldow'in the sum of $400 upon two promissory notes, he agreed by parol to turn over the property to them in discharge of that indebtedness and a credit of $100 on their books, and Matthews agreed with the Mucklows to take the property. These parol agreements were consummated by the execution, at the instance of the Mucklows, of a deed from Southam to Matthews and the delivery thereof, together with other title papers appertaining to the property, to him. Matthews thereupon paid to the Mucklows $50.00 on account of the purchase money, and for the balance, $450, gave them a judgment-note which the Mucklows entered of record on July 20, 1900.

A short time after the delivery of the deed and the other title papers to Matthéws, he took actual possession of the premises and occupied them for a year and a half or two years. Then he rented them to Southam, who went into possession and regularly paid the rent to Matthews until the latter part of July, 1905. The taxes on the land for the years 1900 to 1905 were assessed in the name of Matthews, the taxes for two of those years were paid by him, and he also paid to the Mucklows $33.00 on account of interest on the judgment he had given them.

We stop here to consider a legal question raised by one of the defendants’ points. It is claimed that the consideration that moved directly to Southam was the discharge by the Mucklows of his indebtedness to them, and therefore a resulting trust arose in their favor. But it must be remembered that a trust of this nature rests upon presumption merely, and that this presumption is not one juris et de jure but of fact merely and open to rebuttal: Bispham’s Equity (7th ed.), sec. 83. As was said in Zimmerman v. Barber, 176 Pa. 1, it may be rebutted by evidence which satisfactorily shows that it was not the intention of either party that the beneficial interest should be in the party paying; in other words, the presumption will be overcome by proof that it is at variance with the intention or understanding of the parties. It is to be remembered, further, that to establish a trust by parol the evidence must be full, clear and convincing. “It is not enough that it satisfies a jury, it must also satisfy the mind and conscience of the court sitting as a chancellor reviewing the testimony, and if it fails in this respect it must be withdrawn from the jury: ” Olinger v. Shultz, 183 Pa. 469; Fidelity Insurance Trust and Safe Deposit Co. v. Moore, 194 Pa. 617. The irresistible conclusion from the testimony is that no trust was intended, but that what was contemplated in the execution and delivery of the deed directly from Southam to Matthews is precisely what would have occurred so far as the question of title is concerned, if Southam had deeded the land to the Mucklows, and they, at once, had deeded it to Matthews.

Resuming the statement of the facts, on July 24, 1905, the lien of the Mucklows judgment having expired, Lutz and Scherer, creditors of Matthews, obtained from him a judgment note for the amount of their debt, containing a waiver of inquisition and a confession of condemnation of real estate, which they entered of record on the following day. At this time, it must be borne in mind, the absolute title to the premises was in Matthews as above shown, and nothing had occurred to dissolve or suspend the relation of landlord and tenant between him and Southam. The fact that in the early part of July, prior to the giving of this note, Matthews had expressed his inability to pay the balance of the purchase money note given, to the Mucklows, and had placed his deed and other title papers in their hands to enable them to negotiate a sale of the land, does not militate against the foregoing conclusion..

On August 1, 1905, the above-stated conditions being unchanged, and the Mucklows having actual knowledge of the existence of the deed from Southam to Matthews as well as of the judgment in favor of Lutz and Scherer, Southam and his wife executed and delivered a deed for the premises to the Mucklows. At the same time a lease from the Mucklows to Southam was executed by the parties. After the execution and delivery of this deed from Southam to the Mucklows, Matthews, in the presence of William Mucklow and Southam, burned his deed.

The next legal question to be considered is, what was the legal effect of these acts. In general, an estate once vested cannot be divested by mere annulment and cancellation of the deed; the cancellation is but the destruction of the evidence of the title, not the annulment of the title itself: Tate v. Clement, 176 Pa. 550. A fortiori, it cannot extinguish rights of third persons that have accrued in the meantime. Therefore the burning of the deed by Matthews, even if it was done with the approval of Southam and the Mucklows, had no effect upon his title or the lien of the Lutz and Scherer judgment. It is argued that the deed from Southam to Matthews, not having been recorded within ninety days after its delivery, cannot prevail against the later deed from Southam to the Mucklows, which was duly put on record. But the grantees in the later deed were not purchasers for value without notice. As was said in the last cited case, so it may be said here, it is doubtful if in equity they could be treated as anything more than volunteers, but in any case they took with actual notice of the conveyance to Matthews, and of the title thereby vested in him, and therefore with notice that their grantor, as against the prior conveyance, had no title to convey. It follows that the title was still in Matthews on August 7,1905, when Lutz and Scherer issued a fi. fa. upon their judgment and levied upon the land; that it passed to Lutz, the purchaser at the sheriffs sale thereunder, upon the execution, acknowledgment and delivery to him of the sheriff’s deed; and that he was entitled to possession of the land in December, 1905, when he instituted these proceedings under the act of April 20,1905, to recover possession.

This brings us to the questions of procedure. As its title indicates, the act of 1905 is a general and comprehensive statute providing for and defining the rights, remedies, duties and liabilities of purchasers of real estate at judicial sales, and of their grantees, heirs and devisees, and of the persons then in possession thereof. It contains nineteen sections, the last of which expressly repeals several cited acts and amongst them the Schuylkill county Act of May 13,1871, P. L. 820, relating to the same subject, and concludes with a repeal of “all other acts, and parts of acts thereof, general, special or local, inconsistent herewith.” It is claimed that this express repeal of the local act was ineffectual : first, because the provision of sec. 8, art. Ill of the constitution, relative to the publication of notice of the intention to apply for the passage of a local or special bill, was not complied with; secondly, because the subject of the repeal of local legislation is not expressed in the title. In support of the first proposition counsel cite Chalfant v. Edwards, 173 Pa. 246. The point decided in that case was that an act merely repealing a local law is itself a local law within the meaning of sec. 8, art. Ill of the constitution, particularly if the object of the repealing act is not to make way for a general law, but another local one. But this case is not authority for the proposition that a law, which by implication or express terms is intended to operate throughout the state and to supersede all inconsistent legislation, is a local or special law within the meaning of that section. Such a law is none the less a general law because it removes the barriers which would prevent its operation in particular localities. It is therefore not within the constitutional provision above mentioned. As a complete answer to the second proposition it is sufficient to quote the ruling of the Supreme Court in Commonwealth v. Moir, 199 Pa. 534, as thus expressed by the present chief justice: “It is further said that the act has more than one subject and one not expressed in the title. This is based on the last section of the schedule, which is a repealing clause. It is enough to say at present that the repeal of previous acts on the same general subject is always germane to the title. Usually the repealing clause is only declaratory of what would be the legal effect without it, but it is useful as preventing doubt upon the legislative intent.”.

The petition by which the proceedings were instituted is in conformity to the requirements of the act except in a particular about to be considered. One of these requirements is that the petition shall set forth: “That the persons in possession are the defendants as whose property said real estate was sold or that such named persons came into possession mediately or immediately through a right or title derived from such defendants, or some of them, in a manner set forth, or an averment that the manner of their obtaining possession is unknown to the petitioner.” The petition after averring, inter alia, that the premises were levied upon by the sheriff as and for the property of Matthews, with notice to Southam and the Mucklows, sets forth: “that the said Micheál Matthews as whose property the said real estate was sold, was the owner thereof at the time of the said sale; that the said Benjamin Southam was in possession of the said real estate at the time of the said sale and is now in possession thereof; and that the said William H. Mucklow and T. F. Mucklow now claim to be the owners of the said real estate. That notice of the claim of title to the said real estate was served by the said William H. Mucklow and T. F. Mucklow on the sheriff, at the sheriff’s sale of the same.” While as matter of fact Southam went into possession as tenant of Matthews, and while under the evidence the plaintiff was entitled to pursue the remedy given by the act, yet, it must be conceded, the petition is defective in not distinctly averring in what manner Southam went into possession or that the manner of his obtaining possession was unknown to the petitioner. See sec. 1, clause (b). If this objection had been raised in the first instance the petition could have been amended under sec. 18 of the act; and it may be noticed, although we do not regard this as affecting the case on appeal, that an offer was made to amend it on the trial, before the plaintiff rested his case. But the objection was not raised in the first instance. On the contrary, the four defendants, Matthews, Southam and the Mucklows, having been duly cited, appeared and filed an answer admitting some of the allegations of the petition, denying others and setting forth a brief of the title under which the Mucldows claimed to be the owners of fee. As they were given a right to do by sec. 5, they concluded their petition with a prayer for “ a jury trial of the issues of fact herein raised.” Later, pursuant to this request, the court "ordered that a jury trial shall be had upon the pleadings as filed.” Still later, the defendants pleaded “not guilty.” Six months after this plea was entered and just as the jury were about to be sworn, the defendants raised the objection to the petition now under consideration, and moved the court to dismiss the petition and proceedings, it being then for the first time claimed by them that the plaintiff’s sole remedy was by an action of ejectment. The refusal of this motion is the subject of the first assignment of error. It is to be observed that every person who claimed any title or right of possession was a party to the issues tried by the jury. The trial was awarded at the defendants’ request, and the issues of fact for the. determination of which they requested the trial-were tried in the same court and in the same manner as they would have been in a trial of an action of ejectment. The plaintiff acquired no advantage and the defendants were subjected to no disadvantage in respect of the admission or rejection of evidence or of the burden of proof. Under the circumstances the defendants must be deemed, by their appearance, answer, request for jury trial and plea, to have waived the defect in the petition, and to have submitted themselves to the jurisdiction of the court to try the issues of fact precisely as they were tried, and, as already stated, they were not prejudiced in any substantial right thereby.

In conclusion, the plaintiff was entitled to recover the possession, and there was no error in the proceedings whereby recovery was awarded to him, which justifies a reversal of the judgment. All the assignments of error are overruled.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Allentown to use v. Ackerman, Appellant.

      Corporations — Foreign corporations — Registration of agent in office— Right to sue — Municipal contract — Municipal lien — Scire facias.

    Where a foreign corporation duly registers an office and an agent in the manner prescribed by the Act of April 22, 1874, P. L. 108, and thereafter performs a municipal contract for paving in a county other than the county in which its designated office was located, the fact that the company did not file in the office of the secretary of the commonwealth a statement, or an amendment to a former statement, designating an office in the county where the work was done and an agent for the transaction of its business therein, is not a bar to recovery by a scire facias upon a rnunicipal claim for an assessment against the landowner’s property, the claim having been filed, and the scire facias issued in the name of the city to the use of the contracting corporation. In such a case the rights of the legal plaintiff alone can be regarded and must prevail.

      Road law — Paving—Municipal claim — Averments of claim — Acts of May 23, 1889, P. L. 277, May 16, 1891, P. L. 75, and June 4, 1901,. P. L. 364.
    Where a municipal claim contains the averments required by the Act of June 4, 1901, sec. 11, P. L. 364, it is not necessary for the plaintiff in the scire facias on the claim, to disprove allegations of the affidavit . of defense to the effect that the city engineer did not make a certificate stating the time of the completion of the improvement, and file the statement with the city clerk, and that no notice was given to the defendant of the time and place of making the assessment. Such facts need not be averred in the claim.
    It is not necessary under the Acts of May 23, 1889, P. L. 277, and May 16, 1891 P. L. 75, for a municipal claim for paving to state the materials of which the pavement was constructed.
    Where the affidavit accompanying the claim is not made by the person designated by section 11 of the act of 1901, but is so drawn as to affect the landowner with notice of that fact, the defect will be deemed to have been waived if the owner raises no objection either by demurrer, or motion to strike off the claim, and first raises the objection on a motion for compulsory nonsuit.

      Appeals — Assignments of error — Printing documentary evidence.

    When error is assigned to the admission or rejection of a writing, a “full copy” of the writing must be printed in the paper-book.
    Argued Dec. 5, 1907.
    Appeal, No. 155, Oct. T., 1907, by defendant, from judgment of C. P. Lehigh Co., Oct. T., 1905, No. 61, on verdict for plaintiff in case of' City of Allentown to use of Warren Brothers Co. v. J. M. Ackerman.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur municipal lien. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    At the trial, plaintiff offered in evidence certificate of commonwealth of Pennsylvania, showing that on May 19, 1902, Warren Brothers Co., a foreign corporation, registered with the secretary of the commonwealth, an office located in Harrison Building, Philadelphia, and an agent as Charles Mitchell, Robert Gwynne, Jr., and John J. Dyer.
    Objected to. Defendant objects to the admission in evidence-of the offer of the certificate, because it is not an authority for a foreign corporation to do business in the county of Lehigh, but merely an authority to do business in the city of Philadelphia. [7]
    Plaintiff also offered in evidence municipal lien, City of Allentown to the use of Warren Brothers Co. against J. M. Ackerman, 254, January Term, 1905, in the court of common pleas, recorded Mechanic's Lien Docket No. 7, page 76, filed April 1, 1905, for street paving for $98.90, with interest.
    Objected to. Defendant objects to the lien being admitted in evidence.
    1. Because it is not signed by the city solicitor of the city of Allentown or by anyone authorized to act as agent for said city.
    2. Because it is signed by Dillinger & Schwartz, solicitors of the use plaintiff. That it is incorporated under the laws of the State of West Virginia with its principal office at 93 Federal street, Boston, Mass.; that its object is the manufacture and sale of bituminous paving and roofing materials and contracting for paving and roofing of all classes.
    3. That the lien offends against the provisions of sec. 11 of the act of 1901, passed June 4, 1901, which provides that said claim must be signed by the solicitor or chief executive officer of claimant, and in case of the use plaintiff must be accompanied by an affidavit that the facts set forth are true to the best of his knowledge, information and belief; that the municipal claim here is not supported by an affidavit by any party either solicitor or executive officer of the city of Allentown, but purports to be made by one Dallas Dillinger, Jr., resident cashier, who is not an officer of said city.
    4. The lien as filed does not set forth the kind and character of the work done as provided in sec. 11 of said act, par. No. 7, which reads, “ Any other than tax claims, the kind and character of the work done for which the claim is filed and if the work be such as to require previous notice to do it, when and how such notice was given. Objection overruled. [8]
    Defendant proposed to prove by Dallas Dillinger, Jr., on cross-examination, any representation of all inferences to be drawn from his examination in chief that he was not in any way connected with the use plaintiff in this issue, but was employed and paid by the Standard Bithulitic Company, a foreign corporation, who did the business of paving the street for which the lien in this case is filed.
    Objected to, as not cross-examination and as incompetent and irrelevant and properly a part of the defense. Objection sustained. [9]
    Plaintiff offered in evidence, both the paper and the resolution docket page 343. It is the third resolution on this page.
    Objected to. The alleged original resolution is objected to as incompetent and irrelevant and not in compliance with the act of assembly, which requires that all resolutions and ordinances shall be entered into an ordinance book kept for the purpose and signed by the mayor approving the same.
    And objects to the resolution in the book because it does not purport to have been signed by anybody and is apparently not any official act whatever.
    Objected to, further, for the additional reason that to what is called the original resolution, that it has not been proved either by the person offering it -or by the record of councils adopting it, or that it was referred to any committee or any report made thereon. Objection overruled. [10]

      Verdict and judgment for plaintiff for $114.74. Defendant appealed.

      Errors assigned were (1) in giving binding instructions for plaintiff, and (7-10) rulings on evidence, quoting the bill of exceptions.

      Milton C. Henninger, with him Edward Harvey and Edwin H. Stine, for appellant.
    The right of Warren Brothers Co., the use plaintiff, to do. business in the city of Allentown, was denied by the defendant in the affidavit of defense; and under the decisions by the courts it was incumbent for the plaintiff to prove that fact, for on it rested the burden of proof: Phœnix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Wall Paper Co.’s App., 15 Pa. Superior Ct. 407; Delaware River Quarry, etc., Co. v. Ry. Co., 204 Pa. 22.
    The defendant further contends, that the lien on which this scire facias was brought has no legal force and effect.

      Frank Jacobs, for appellee.

    A municipal claim for street paving having been assigned by the city to the contractor who did- the work, and the work having been accepted by the city, the defendant property owner, on the trial of a writ of sci. fa. issued on the lien by the city to the use of the contractor, is not permitted to raise questions pertaining to the registration of the use plaintiff, a foreign corporation, whether the work was done by the contractor or another, the validity of the lien in respect to the persons signing it and making the affidavit thereto, that the city engineer did not certify and the city clerk did not record the day and time of completion of the improvement and that no notice was served on the defendant of the time and place of making the assessment: Phila. to use of Dyer & Shantz v. Brooke, 81 Pa. 23; City to use v. Hays, 93 Pa. 72; McCormick’s App., 165 Pa. 386; Child’s App., 179 Pa. 634; Sandy Lake Borough v. Gas Co., 16 Pa. Superior Ct. 243; Hill v. Long, 28 Pa. Superior Ct. 608; Phila. v. Jewell, 135 Pa. 329; Phila. v. Gorgas, 180 Pa. 296; Fell v. Philadelphia to use, 81 Pa. 58; Scranton v. Jermyn, 156 Pa. 107; Wabash Ave., 26 Pa. Superior Ct. 305; Chester v. Eyre, 181 Pa. 642; Pittsburg v. MacConnell, 130 Pa. 463; Brighton Road, 213 Pa. 521; Erie v. Bier, 10 Pa. Superior Ct. 381; Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491.
    A foreign corporation which has filed with the secretary of the commonwealth a statement designating an office and agents in one county of the State, may lawfully enter into a contract with a municipality in another county and in pursuance thereof pave one street, during a period of about four months, and enforce the collection of the lien therefor, the work being directed and its capital maintained at its principal office in another State: Del. River Quarry, etc., Co. v. Ry. Co., 204 Pa. 22; De La Vergne Refrigerating Mach. Co. v. Kolischer, 214 Pa. 400; Sattler & Co. v. Machinery Co., 6 Pa. Dist. Rep. 419; Gardner Shingle Co. v. Nicola Bros. Co., 25 Pa. C. C. Rep. 303; Mearshon & Co. v. Lumber Co., 187 Pa. 12; Kilgore v. Smith, 122 Pa. 48; Wolff Dryer Co. v. Bigler, 192 Pa. 466; Opinion of Atty. Genl., 12 Pa. Dist. Rep. 10.
    That under the Act of June 4, 1901, P. L. 364, the statement of claim of municipal lien may be signed by the attorneys for the use plaintiff and the affidavit thereto may be made by a person having knowledge of the facts contained in the statement and described as resident cashier of use plaintiff, and the city and use plaintiff may ratify the acts of persons acting with doubtful authority: Robb v. Penna. Co., 186 Pa. 456; Marshall Ave., 213 Pa. 516; Allentown to use v. Light, 15 Pa. Dist. Rep. 619; Rodney v. City to use of Young, 3 Walker, 505.
    It is a sufficient description of the kind and character of street paving in a municipal claim to give the location, the number of yards, price per yard, et cet.: Erie City v. Willis, 26 Pa. Superior Ct. 459.
    October 12, 1908:
   Opinion by

Rice, P. J.,

The use plaintiff, Warren Brothers Company, was incorporated under the laws of West Virginia, and in 1902 filed with the secretary of the commonwealth of Pennsylvania a statement in the form prescribed by the Act of April 22, 1874, P. L. 108, in which it set forth, inter alia, that the object of the company is the manufacture and sale of bituminous paving and roofing materials and contracting for paving and roofing of all classes; that its principal office was at No. 93 Federal street, Boston, Mass.; that the office of the company in Pennsylvania had been established in Philadelphia, specifying the location; and that certain persons, naming them, were its duly authorized agents to transact its business at said office. In June, 1904, no additional or substituted statement having been filed in the office of the secretary of the commonwealth, and so far as appears no change in the location of its general office in Pennsylvania or of its agents having been made, it entered into a contract with the city of Allentown to pave the street upon which the defendant’s property abuts. After this contract was made, and about the time the work of paving was begun an office bearing the sign Warren Brothers Company was opened in the city of Allentown, which was maintained during the progress of the work, but whether or not any business was transacted at this office by Warren Brothers Company during that period, and if so what was its nature, does not clearly appear in the evidence. In this particular, to which we shall refer later, as well as in other particulars, there is a failure of analogy between this case and the cases of Phoenix Silk Manufacturing Co. v. Reilly, 187 Pa. 526, and Wall Paper Co.’s Appeal, 15 Pa. Superior Ct. 407, upon which the appellant’s counsel rely. The pavement having been completed and the city having accepted it, as we shall presently show, and directed the assessments upon abutting properties to be made, we are of opinion that the fact that the contractor did not file in the office of the secretary of the commonwealth a statement, or an amendment to its former statement, designating an office in Lehigh county and an agent for the transaction of its business therein, is not a bar to recovery by scire facias upon a municipal claim for the assessment against defendant's property, the claim having been filed and the scire facias issued in the name of the city to the use of the contractor. This conclusion is not based upon a determination of the question whether the purpose for which the office in Allentown was maintained, and the nature and scope of the business transacted thereat, were or were not such as to require an additional or amended statement to be filed in the office of the secretary of the commonwealth, for the evidence is too meager for the proper determination of that question, but upon the ground that under the facts shown the defendant is not in a position to raise the question, “Actions by a municipal corporation to the use of a contractor who has done the work, against the owner of property charged with the payment of it, are a species of tripartite contests, unknown to the common law, and presenting some difficulties in procedure under its forms. The general rule, even in Pennsylvania where equity is part of the common law, undoubtedly is that the rights of the legal plaintiff only can be regarded and must prevail, but the rule has as many exceptions as the principles of equity require for their enforcement:” Philadelphia v. Jewell, 135 Pa. 329. In determining whether this case is within the general rule above stated, or within some exception to it, it is to be constantly borne in mind that the purpose of the act of 1874, with which we are concerned in the present case, is to bring foreign corporations doing business in this state within the reach of legal process, and thereby protect those with whom it does business, or to whom it may incur liability by -its wrongful acts: Delaware River Quarry and Construction Co. v. Bethlehem and Nazareth Passenger Ry. Co., 204 Pa. 22. The use plaintiff had no contract and did no business with the defendant, and for any liability to him which the company might incur by its wrongful acts committed in the performance of its contract with the city, he had, from the beginning, an ample and convenient remedy by action brought in Lehigh county and service of summons on the company’s registered agents in Philadelphia: Act of July 9, 1901, P. L. 614, secs. 5 and 2. We can see no substantial reason for making this an exception to the general rule that the rights of the legal plaintiff only can be regarded and must prevail.

We -have said that the pavement was accepted by the city. It is claimed that the evidence admitted to establish that fact was not competent. The evidence consisted (a) of a book in which resolutions of councils are recorded, and in which appears the record, although not signed by the mayor, of the resolution in question; (b) the original resolution, produced by the city official having custody of such resolutions. Spealdng of this subject in his opinion overruling the defendant’s motion for new trial and for judgment non obstante, the learned judge below says: “The resolution was admitted only after it was proved that the city clerk who produced it had possession of the ordinances and resolutions of the city, that they were turned over to him by his predecessor in office and after proof of the •signatures of the mayor and other officers who had signed it, and also after the resolution docket had been objected to because the resolution offered had not been signed by the mayor on the book.” While the body of this resolution is printed in the appellant’s paper-book, the verification of it by the officers of councils, and the action of the mayor, which we infer from the testimony were indorsed upon it, are not printed. It is a case where strict compliance with our rule that when the error assigned is the admission or rejection of a writing, a “full copy” of the writing must be printed in the paper-book was of great importance. To be a full copy of the paper in question the indorsements above referred to should have been printed. Because of noncompliance with the rule the assignment of error might be disregarded. This being so, the appellant has no right to complain, if we assume that the paper purporting to be a resolution of the common council, the select council concurring, was duly certified by the proper officers of councils and approved by the mayor. Taking this justifiable view of the evidence, we are unable to say that the defective record in the resolution book, thus supplemented by the original resolution, was not sufficient, in the absence of any countervailing evidence, to establish the fact that the pavement was accepted by the city.

The next question to be considered is thus stated by the appellant’s counsel: “In the absence of proof on the part of the plaintiff, to the allegations of the defendant in the affidavit and . supplemental affidavit of defense, that the city engineer did not make a certificate stating the time of the completion of the improvement and file the same with the city clerk, and that no notice was given to the defendant of the time and place of making the assessment; was the plaintiff under the pleadings in the case entitled to a verdict by direction of the court? ” Assuming the claim to be in compliance with the statute in other particulars, it seems to be a sufficient answer to this question to say that as sec. 11 of the act of June 4, 1901, which specifies in detail what averments a municipal claim must contain, does not require these facts to be averred, and as sec. 20 of the same act makes the claim itself, if it conforms to the requirements of the statute, evidence of the facts necessarily averred, it was not incumbent on the plaintiff in the presentation of its case in chief, to disprove these specific allegations of the affidavit of defense. There are several cases in which similar results have been reached upon construction of statutes making the claim evidence, but it is enough to refer to Philadelphia to use v. Macpherson, 140 Pa. 5.

One of the requirements of the statute is that, in other than tax claims, the claim shall set forth “the kind and character of the work done” for which the claim is filed. The claim in this case sets forth that the work for which it was filed was done under and by virtue of the Act of May 23, 1889, P. L. 277, the Act of May 16, 1891, P. L. 75, and their supplements, and a clearly identified city ordinance, and that the kind and character of the work was “the paving of North Seventh street on the east side thereof in front of the above-described property " and these averments are followed by a statement of the number of square yards of paving and the cost per yard. The materials of which the pavement was constructed are not set forth, it is true, but the statute does not expressly require this to be done, and we are not convinced that such requirement is to be implied. It is essential, however, that the claim should show that the kind and character of the work were such as bring it within the general class of municipal improvements, to defray the cost of which assessments may be made upon and claims therefor may be filed against abutting properties, and distinguish it from all other species of municipal improvements of the same general class. If the statute recognized different kinds of paving, depending upon the materials used, and its provisions relating to each kind differed from those relating to the others, it might, perhaps, have been essential to describe the materials; but in the absence of any such statutory subdivision of this species of municipal improvements, we conclude that it was not absolutely essential to go into further particulars in order to show the kind and character of the work for which the claim was filed. At all events, the omission to go into further particulars was, at the worst, a mere defect which could not be taken advantage of under the pleadings, as the cases hereafter cited abundantly show.

The only remaining question that need be noticed is thus stated by appellant’s counsel. “Can there be a recovery on scire facias on a municipal claim filed, which was not signed by the solicitor of the municipality nor by any executive officer thereof, and not accompanied by an affidavit of any of the said officers, nor by an officer or agent of the use plaintiff?” The facts out of which this question arises are as follows: The claim is signed “Dillinger & Schwartz, solicitors of the use plaintiffs,” and the affidavit accompanying it is as follows: “Dallas Dillinger, Jr., Resident Cashier, being duly sworn according to law deposes and says that the facts above set forth are true and correct to the best of his knowledge, information and belief.” On the trial of the case Dallas Dillinger, Jr., being called as a witness on behalf of the plaintiff, testified that he was never in the employ of Warren Brothers Company, but was in the employ of the Standard Bitulithic Company (which company, it is alleged in the affidavit of defense, paved the street under a subcontract with Warren Brothers Company), and that the office where he was employed, although having upon it the sign Warren Brothers Company, was, as far as he knew, the office of the Standard Bitulithic Company. He further testified that he served notices stamped with the name of Warren Brothers Company, and that he prepared the claim but did not file it; but neither of these acts, nor any other act testified to by him, repels or modifies the effect of his unequivocal testimony that he was not in the employ of the use plaintiff but was in the employ of the other company. There is no escape from the conclusion that- he was not the solicitor, or the chief executive officer of the use plaintiff, and it is not pretended that he had any authority to act for the city, the legal plaintiff.

First, as to the signing. Inasmuch as the word “claimant,” as used in the act of 1901, is defined in the first section to mean “the plaintiff or use plaintiff in whose favor the claim is filed as a lien,” it would seem that the signing of a claim by the solicitor or chief executive officer of the contractor and use plaintiff would be a sufficient compliance with the first clause of sec. 11 hereinafter quoted. And as it does not appear in the evidence or otherwise that Dallas Dillinger, Jr., who made the affidavit, was the same person whose name is signed to the claim, and as there is no other evidence tending to overcome the prima facie presumption that Dillinger & Schwartz were the solicitors of the use plaintiff, we conclude that there is no irregularity in the signing of the claim that would invalidate it. Further, Donahoo v. Scott, 12 Pa. 45, and Rodney v. City to use of Young, 3 Walk. 505, furnish some support to the position taken by the appellee’s counsel and the learned judge below, that the filing of the claim by the use plaintiff and the issuing of a scire facias thereon was a ratification of the act of the persons whose names are signed to the claim.

Second, as to the authority of Dallas Dillinger, Jr., to make the affidavit required by sec. 11 of the act. The section, after declaring what the claim must'set forth, concludes as follows: “Said claim must be signed by the solicitor or chief executive officer of the claimant; and in the case of a use plaintiff must be accompanied by an affidavit that the facts therein set forth are true to the best of his knowledge, information and belief.” If the word “his” could be construed to mean the same as if the words “the affiant’s” had been used, there would be little room for doubt that an affidavit made by any person cognizant of the facts would be good. But this would be opposed not only to the grammatical construction of the sentence but to the construction arrived at by a consideration of the purpose of the provision as manifested by the context and the subject-matter. If the word “his” must be construed to relate to some person already mentioned, as we think it must, the only person authorized to make the required affidavit is the solicitor or chief executive officer of the claimant, or, perhaps, the use plaintiff himself, if he be a natural person. It follows that the affiant in the present case was not the person designated by the statute. Is there any answer to this objection?

It is suggested by the learned judge below that the affiant was cognizant of the facts, and that the filing of the lien and the issuing of a scire facias thereon by the use plaintiff constituted such a ratification of his acts as cured this defect. This assumes that the only person interested in having the affidavit made by the particular person designated in the statute is the claimant. But he is not the only person interested. The ex parte filing of a claim, which shall at once become a lien on the defendant’s property, and be conclusive or even prima facie evidence of the facts therein averred upon the trial of a scire facias, materially affects the defendant’s rights. The right to file such claim with such effect is qualified by the provision that it shall be accompanied by an affidavit of a person having certain designated qualifications, and this provision, judging from its nature, was intended for the defendant’s protection. It is a right conceded to the property owner by the statute, which it is not within the power of the claimant to deprive him of by ratification or waiver. But, unquestionably, the defendant could waive it, and, we think, did waive it. It will be observed upon a reading of the affidavit that it did not purport to be made by the solicitor or chief executive officer of the claimant, but by the “ resident cashier,” of whom is not stated. This was sufficient to affect the defendant with notice that it was not made by the person designated by the statute. He did not take advantage of the defect by demurrer or motion to strike off the claim, but pleaded to the scire facias “the matters of fact alleged in the affidavit of defense.” One of the facts alleged in the affidavit of defense was that the claim “was not signed by the solicitor of the city of Allentown, nor by any executive officer of the said city of Allentown, as required by sec. 11 of the Act of June 4, 1901, P. L. 364.” But, as already seen, it was not necessary that the affidavit be made by either of these .officials. The plea tendered an issue as to an immaterial fact, and so far as regards the defect under consideration was the same as no plea. In view of the foregoing recital of the plea and proceedings, we are warranted in saying that the objection that Dallas Dillinger, Jr., who made the affidavit, was not the chief executive officer nor the solicitor of the use plaintiff, wa's first made in the motion for compulsory nonsuit, and afterwards in the defendant’s third point. But as was said in Lewis v. Morgan, 11 S. & R. 234, the point on which the defendant required the direction of the court was not involved in the pleadings. Applying the principles decided in analogous proceedings, the defect complained of must be deemed to have been waived: Lee v. Burke, 66 Pa. 336, and cases cited in opinion of Justice Sharswood; St. Clair Coal Co. v. Martz, 75 Pa. 384; Fahnestock v. Speer, 92 Pa. 146; Scholl v. Gerhab, 93 Pa. 346; Klinefelter v. Baum, 172 Pa. 652; Norristown v. Fornance, 1 Pa. Superior Ct. 129; Bernheisel v. Smothers, 5 Pa. Superior Ct. 113.

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


text:
    Boltz v. Muehlhof, Appellant.

      Evidence — ■Party dead — Competency of witness — Joint obligations— Mortgage — Scire facias.

    On a scire facias sur mortgage where it appears that the mortgage was given to secure the payment of joint promissory notes made by the mortgagor and two other persons, who were not parties to the mortgage, such persons are not competent witnesses to testify on behalf of the defendant as to matters occurring in the lifetime of the deceased mortgagee.
    In such a ease, although the co-obligors of the defendant are not parties to the action on the mortgage, and would not be concluded by a judgment in the plaintiff’s favor, yet they have an interest to be subserved in obtaining a judgment in the mortgagor’s favor, because upon the trial of an action on the joint notes which the mortgage was given to secure, such judgment will be admissible to prevent a recovery against all, and, therefore, to prevent a recovery against any of the makers. Their interest is not merely in the question, but in the event of the suit.

      Argued Dec. 6, 1907.
    Appeal, No. 188, Oct. T., 1907, by defendant, from judgment of C. P. Schuylkill Co., May T., 1905, No. 138, on verdict for plaintiff in case of Percival K. Boltz and Francis W. Boyer, executors of the last will and testament of William K. Boltz, deceased, v. Catharine L. Muehlhof.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Marr, J.
    At the trial, S. F. Muehlhof was called as a witness for the defendant.
    Mr. Smith: Before the witness is sworn, plaintiff wants to enter on the record an objection to the competency of the witness. Let the witness be sworn to make true answers.
    Witness sworn as requested.
    Mr. Smith: “Q. I show you note at six months offered in evidence, which is one of the notes referred to in the mortgage in suit, and ask you if that is your signature to that note. (Paper handed witness.) A. It is.”
    Mr. Roads: This is in support of your objection to the competency of the witness?
    Mr. Smith: Certainly. “ Q. I show you note already offered in evidence, payable eighteen months after date, which is one of the notes referred to in the mortgage in suit, and ask you if that is your signature. (Paper handed witness.) A. Yes, sir.”
    Mr. Smith: Under the act of 1887, this being an action between the representatives of a deceased party, and the other party to the contract a person in interest, the witness being a person in interest, we claim that under the plain provisions of the act of 1887, the witness is incompetent to testify to any fact prior to the death of the decedent, William K. Boltz, under clause E, of sec. 5 of the Act of May 23, 1887, P. L. 158.
    The Court: It seems to me I will sustain this objection. It seems to me that the testimony of these cases is that it is the interest in the subject-matter of a suit that disqualifies a party from being a witness; and this being a suit on a mortgage which is held as collateral for two notes, and the "witness being one of the makers of these notes, it seems to me that he had an interest in this subject-matter, which would be adverse to the plaintiff, and, therefore, he would come within this ruling and come within clause E, of sec. 5.
    The Court: My impression at present is that I will sustain the objection, but I will give it thought between this and morning, and if I come to a conclusion differently in the morning, I will reverse it for you very willingly.
    The Court: I think I will sustain the ruling the court made last evening, and sustain the objection to the competency of this witness.
    Defendant excepts. Bill sealed.
    Other facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,224.92. Defendant appealed.

      Error assigned was ruling on evidence, quoting the bill of exceptions.

      George M. Roads, with him John F. Whalen, for appellant.—
    The witness was competent: Ackerman’s App., 106 Pa. 1; Pennebaker v. Parker, 33 Pa. Superior Ct. 458; Shirk v. Vanneman, 3 Yeates, 196; Wolf v. Carothers, 3 S. & R. 240; Juniata Bank v. Brown, 5 S. & R. 226; Jackson v. Wright, 3 Wharton, 601; Strohecker v. Hoffman, 19 Pa. 223; Collier v. Leech, 29 Pa. 404; Dickson v. McGraw, 151 Pa. 98; Bank v. Henning, 171 Pa. 399; Spotts’s Est., 156 Pa. 281; Smith v. Rishel, 164 Pa. 181; Merchants’, etc., Bank v. Pizor, 24 Pa. C. C. Rep. 273.

      Edmund D. Smith, with him Arthur J. Pilgram, for appellee,
    cited: National Bank v. Buckwalter, 214 Pa. 289; McFarlane v. Kipp, 206 Pa. 317; Garber v. Com., 7 Pa. 265; Smith v. Black, 9 S. & R. 142; Shannon v. Com., 8 S. & R. 444; Sterling v. Trading Co., 11 S. & R. 179; Com. v. Watmough, 6 Whart. 117; Kyte v. Foran, 167 Pa. 252; Pattison v. Cobb, 212 Pa. 572; Patterson v. Wallace, 44 Pa. 88.
    October 12, 1908:
   Opinion by

Rice, P. J.,

Charles F., Gustavus A. and Catharine L. Muehlhof gave to W. K. Boltz their joint promissory notes under seal, and Catharine L. delivered to him a mortgage upon her property, which shows upon its face that it was given as security for the payment of the notes. Boltz brought an action of assumpsit on the notes against the three makers, and also issued scire facias upon the mortgage. To the latter the mortgagor set up the defense, by plea and affidavit of defense, that the notes were given for part of the purchase price of certain property sold by Boltz to Charles and Gustavus, that the vendees were induced to make the contract to purchase by certain false and fraudulent representations of a material and substantial nature which Boltz made to them with intention to deceive, and that Boltz had failed to perform certain conditions of the contract. After the death of Boltz, his executors were substituted as plaintiffs in the scire facias, and on the trial of the case defendant called Charles F. Muehlhof as a witness. Objection was made that he was not competent to testify to any matter occurring before the death of Boltz. This was the extent of the objection. The sustaining of this objection is the subject of the only assignment of error.

Comment is made by the appellant’s counsel upon the fact that the ruling was made before the witness was sworn, except upon his voir'dire, and before an offer had been made or requested of what was proposed to be proved by him. A regular, and the more appropriate, course would have been to permit him to be sworn as a witness and rule upon his competency to testify to matters occurring before the death of Boltz when an offer was 'made to have him testify to such matters. It is apparent, however, from the bill of exceptions, that the effect of the court’s ruling was not to prevent the defendant from offering him as a witness as to matters occurring after the death of Boltz, and as the defendant made no such offer it may safely be assumed that that was not the purpose for which the witness was called. Moreover, the. remarks of counsel, which appear by the official report of the trial to have been made immediately after the ruling, show that what the defendant intended to prove by the witness were the false and fraudulent representations above referred to.

Considering the assignment of error in that view, it will be observed that the testimony proposed to be given was in support of a defense which went not merely to the mortgage, or was available only by Catharine L. Muehlhof, but went to the notes which the mortgage was given to secure, and was common to all the makers. A state of facts can be conceived under which a judgment in favor of the mortgagor in an action upon the mortgage would not be available by him as a defense on an action on the bond or note the mortgage was given to secure. But this is not such a case. Judging the effect of the judgment by the nature of the plea, it surely cannot be contended that if the mortgagor prevailed in this action on the mortgage, and obtained a judgment which established the truth of her plea, she could not use the judgment to defeat the action on the notes. As between her and the plaintiff in that action the question of her liability on the notes would be res judicata. We see no escape from that conclusion. It would be very unreasonable and contrary to the settled rules upon the subject, to permit the plaintiff, having once been defeated on the merits to try the same question again in a different form:” Follansbee v. Walker, 74 Pa. 306. But it is argued that a judgment in the mortgagor’s favor would have no further effect. To adopt the language of the appellant’s counsel, it would not prevent the executor of the payee from proceeding to recover from the other two makers of the notes. We shal1. not attempt an enumeration of all the special circumstances under which one not a party to a judgment may introduce it in evidence in his own case as an adjudication of a question there in issue. There are numerous reported cases of that class. One of the most recent in which such right is impliedly recognized as affecting the competency of a witness is Pattison v. Cobb, 212 Pa. 572, where it was held that but for his discharge in bankruptcy prior to his being offered as a witness the guarantor on a note would not be a competent witness for the maker as to matters occurring before the death of the payee. Justice Brown said: “If at the time Chase was called as a witness there was a liability on his contract of guaranty, his interest was adverse to the right of the deceased in the contract with Cobb, and for that reason he would have been properly excluded.” This could only be upon the ground that he could give the judgment in the defendant’s favor in evidence in an action brought against him upon his guaranty. But'the answer to the present contention is ound in the principles governing actions upon joint obligations. “Wherever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for this purpose; but, on the other.hand, there should be words of severance, in order to produce a several responsibility or a several right. Whether the liability incurred, is joint, or several, or,such that it is either joint or several at the election of the other contracting party depends (the rule above stated being kept in view) upon the terms of the contract, if they are expressed. Whether the liability of covenanters is joint or several or both depends exclusively upon the words of the covenant. The language of severalty or joinder is the test. The covenant is always joint unless declared to be otherwise." Pittsley v. King, 206 Pa. 193. See also National Bank v. Buckwalter, 214 Pa. 289. Unquestionably, the notes which this mortgage was given to secure were joint notes, not joint and several; and in an action on such an obligation, ordinarily, there can be no recovery against less than the whole number of the obligors because neither is liable if it is not the joint contract of all: Swanzey v. Parker, 50 Pa. 441. Accordingly, it was held in that case, in which the subject was discussed by Justice Strong with his usual thoroughness, that in an action on a joint contract, where judgment was taken by default against one of the defendants and a trial had against the other, on a plea that was common to both, the defaulting defendant was incompetent as a witness for his co-defendant. So also it was held in Smith v. Sillyman, 3 Whart. 589, that in an action against three joint obligors in a bond, one of the obligors not summoned was not a competent witness for the defendant served, although the latter paid into court a sum sufficient to cover the principal and interest of the bond and the costs of suit. The reason given for the ruling was that “the witness was directly interested in procuring a judgment for the defendant; for this would be a bar to a recovery against him in a subsequent suit,” and this legal interest remained notwithstanding the deposit. The exception to the rule is when one sets up a defense which the other cannot use, as, for example, “infancy” or “that he was a surety in the contract and that he has been discharged in equity by the conduct of the creditor.” But this case, as we have seen, is not within the exception. Hence, although the witness was not a party to the action on the mortgage, and would not have been concluded by a judgment in the plaintiff’s favor, yet he had an interest to be subserved in obtaining a judgment in the mortgagor’s favor, because upon the trial of an action on the joint notes the mortgage was given to secure such judgment would be admissible to prevent a recovery against all, and, therefore, to prevent a recovery against any of the makers. The interest of the witness was not merely in the question but in the event of the suit; he would be “implicated in the legal consequences” of a judgment in the defendant’s favor as thus defined by Chief Justice Gibson: “By legal consequences are meant those that are fixed, certain and actual, and by which an advantage not depending on a contingency is to be gained or lost; such for instance, as being entitled to give the verdict in evidence in another suit, on the one hand, or being subjected to an incumbrance or duty on the other:” Bennett v. Hethington, 16 S. & R. 193. Having an interest in the event of the suit, which was adverse to the right of the deceased party to the contract in action, his testimony as to the matters he was apparently called to prove was properly excluded upon the ground of interest. This conclusion makes it unnecessary to consider whether he was or was not a surviving party to the thing or contract in action within the true .spirit and intent of the clause of paragraph (e) sec. 5 of the Act of May 23, 1887, P. L. 158, which relates to that subject.

The judgment is affirmed.


author: Porter, J., Rice, P. J.,

text:
    Robbins v. Wilkes-Barre, Appellant.

      Public officers — Compensation—Fees—Statute—Ordinance—Acts of April 5, 1867, P. L. 841, May 4, 1871, P. L. 539, and May 23, 1874, P. L. 230.
    When a public officer claims a salary, fees, or compensation for services rendered to the public, he must show a statute, or a municipal ordinance authorized by statute, giving compensation. If he cannot do this he cannot recover.
    The provisions of the Act of April 5, 1867, P. L. 841, fixing the compensation of auditors of the old borough of Wilkes-Barre, at “two and one-half dollars, for each day’s actual service,” were not extended by the Act of May 4,1871, P. L. 539, entitled: “An Act incorporating the city of Wilkes-Barre ” to the auditors of the city.
    Where a statute provides that auditors shall be compensated at “two and one-half dollars, for each day’s actual service,” an auditor has no claim against the municipality, if it appears that he rendered no actual service, being prevented from so doing by the action of the municipal officers in refusing to submit to them their books. In such a case it is the auditor’s duty to compel the officials by mandamus to submit to him their books.

      Public officers — Municipalities—Constitutional officers — Change of duties — Abolition of officers.

    The offices of a municipality are not public offices under the protection of the constitution. Such office exists by the will of the legislature only, and may be changed, its duties transferred to some other department of the municipality, or entirely abolished at any time, and the incumbent has no standing to complain.
    Where a municipality becomes a city of the third class by operation of the Acts of May 23,1874, P. L. 230, and May 23,1889, P. L. 277, and the term of one of the auditors, as extended by sec. 57 of the Act of May 23, 1874, P. L. 230, expires, the office is at once abolished, and as the special Act of May 4, 1871, P. L. 539, relating to such city expressly provides that the auditing shall be done by a board composed of three auditors, the fragment of the board remaining in office are without authority to perform the duties contemplated by that act, and the board as a board ceases to exist.
    Argued March 4, 1908.
    Appeal, No. 45, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1905, No. 309, dismissing exceptions to report of referee in case of' Isaac Y. Robbins v. Wilkes-Barre.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of James M. Stack, Esq., referee.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to report of referee.

      Charles F. McHugh, city solicitor, for appellant.
    The surrender of the special charter of Wilkes-Barre in the manner provided by sec. 57 of the act of 1874, put in force on April 1, 1899, all of the provisions of the acts of 1874 and 1889, and their supplements. The duties of the auditors were abolished. But through an unfortunate use of general language in sec. 57, the terms of all offices were extended. In theory, the office of city auditor under the special charter continued to exist, so far as this plaintiff is concerned, until the third Tuesday of February, 1901, but the actual service which the act of 1867 required was made impossible because the duties were repealed. An office is not the property of the officeholder, but is a public trust or agency: McCormick v. Fayette County, 150 Pa. 190; Braughler v. Weir, 165 Pa. 284.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellee.
    —The term of appellee’s office was legally extended to embrace the time for which judgment was entered: Com. ex rel. v. Ricketts, 196 Pa. 598; Com. ex rel. v. Nichols, 10 Kulp, 193; Com. v. McCombs, 56 Pa. 436; Com. v. Weir, 165 Pa. 284; Reading v. Savidge, 124 Pa. 328.
    Appellee had a vested interest in his office during the time for which his term was extended: Com. ex rel. v. Troxel, 20 W. N. C. 549; Welchans v. Shirk, 98 Pa. 17; Rink v. Philadelphia, 15 W. N. C. 345; Phila. v. Given, 60 Pa. 136; Jenkins v. Scranton, 205 Pa. 598; Stadler v. Detroit, 13 Michigan, 346; Lloyd v. Smith, 176 Pa. 213; Andrews v. Portland City, 79 Me. 484 (10 Atl. Repr. 458); Jones v. Easton, 4 Pa. Dist. Rep. 509; Com. v. Slifer, 25 Pa. 23; County of Luzerne v. Trimmer, 95 Pa. 97.
    October 12, 1908:
   Opinion by

Porter, J.,

The plaintiff brought this action to recover of the city of Wilkes-Barre compensation at the rate of $2.50 per day for the time which he alleged it would have required him to audit the accounts of the various officers of said city between the first Monday of April, 1900, and February 22,1901, had he been permitted during that period to perform the duties of city auditor. The plaintiff was elected a city auditor in February, 1897, for the term of three years, from the first Monday of April, 1897, to the first Monday of April, 1900. He served during the term for which he was elected/ and admits that he was paid for his services during that term. The plaintiff contends, however, that, the city having become a city of the third class in September, 1898, his term of office was by section 57 of the Act of May 23, 1874, P. L. 230, extended from the first Monday of April, 1900, when it would have expired under the old charter, to the Friday succeeding the third Tuesday of February next following that date. The city had been governed under a special charter at the time of the election of the plaintiff, but having in the manner prescribed by the act of May 23, 1874, section 57, accepted the provisions of that statute governing cities of the third class, the governor of the commonwealth, on September 23, 1898, issued his letters patent certifying the surrender of the former charter and the city thereupon became a city of the third class. A city comptroller was duly elected on the third Tuesday in February, 1899, and that officer assumed the duties of the office on the first Monday of April, 1899, and has since that time continued to discharge all the duties formerly performed by the city auditors. The comptroller audited the accounts and expenditures of the city cúrrently from the first Monday of April, 1899, the auditing being done at the time the expenditure was made. The city auditors had audited the accounts of the various officers after the expiration of each fiscal year, which occurred on the first Monday of April in each year, so that the accounts for each current year remained, under the old system, unaudited until after the expiration' of the year. This system resulted in leaving the accounts for the year beginning the first Monday of April, 1898, and ending the first Monday of April, 1899, unaudited at the time the city comptroller entered upon the discharge; of the duties of his office. This plaintiff and his associate auditors proceeded during the years 1899 and 1900 to audit the accounts of the various officers for the years 1898 and 1899 and had completed that work on the first Monday of April, 1900, when the term for which this plaintiff had been regularly elected expired; for this work the plaintiff and his associates were paid by the city. The plaintiff subsequently made a demand on the city officers for their books and accounts for the year between the first Mondays of April, 1899 and 1900, which had already been audited by the comptroller, the officers declined to submit their accounts to the auditors and neither the plaintiff nor his associates did any auditing during that year, but this plaintiff asserts that he held himself ready during the entire period until February 22,1901, to audit the accounts of the city officers, and asserting that he was unlawfully deprived of the right to audit the accounts, he demands compensation at the rate of $2.50 a day for every working day during that entire period. The plaintiff founds his contention upon section 57 of the Act of May 23,1874, P. L. 230, which regulates the manner in which a city having a special charter may accept the provisions and become subject to the legislation governing cities of the third class; the particular provision upon which the plaintiff relies being in the following words, viz.: “The mayor and councils, school directors or comptrollers and other officers of such city, shall continue to hold their respective offices until the Friday succeeding the third Tuesday of February next following the expiration of their office, as fixed by law before the surrender of the former charter.” The plaintiff recovered a judgment in the court below and the defendant appeals.

It is necessary to review the legislation creating the office of auditor of the city of Wilkes-Barre and regulating the compensation of the officers, in order to properly pass upon the rights of this plaintiff. The first statute referred to by counsel and the learned referee who passed upon the case in the court below is the Act of April 5, 1867, P. L. 841, being a special statute conferring additional powers upon the borough of Wilkes-Barre. In section 3 of that statute we find these provisions, viz.: “At every annual borough election, it shall be lawful to elect one borough auditor, to hold the office three years, three auditors constituting a full board; and it shall be the duty of said auditors, annually, or before the tenth day of April of each year, to audit, settle and adjust, all claims and accounts whatsoever, by, or against the borough, the school directors, overseers of the poor, collectors of taxes, and any other claims and accounts whatsoever; and for said services said auditors shall each be entitled to receive two and one-half dollars for each day’s actual service, payable out of the funds of the borough, school directors, or overseers of the poor, according to the claims or accounts, audited; it shall be their duty to publish, annually, a full statement, or exhibit, of the several accounts so audited by them, on or before the fifteenth day of April of each year.” The Act of May 4, 1871, P. L. 539, entitled “An act incorporating the city of Wilkes-Barre” provided for the election of officers of the city on the first Tuesday in June, 1871, and on the first Tuesday in May annually thereafter, and required the election, among other officers of three persons to be auditors, one of whom shall serve for one year, one for two years, and one for three years; “and from and after said election, the powers, offices and duties of the burgess, auditors, high constable and council of the borough of Wilkes-Barre, and those of the several officers by them appointed shall cease and expire.” The act incorporating the city, while thus completely wiping out “the powers, offices and duties of the auditors of the borough of Wilkes-Barre,” makes no attempt to define the duties of the auditors of the city save what is to be implied from section 26, which requires that “the council shall, once in every year, cause to be published in two newspapers, published in said city a just and true abstract of the auditors’ report on the accounts for the preceding year, showing the receipts, expenditures and financial condition of the city.” The only provision of this statute incorporating the city which provides for or authorizes compensation to the auditors of the city for the services to be by them performed is to be found in section 26: “The council shall have power, and are hereby directed to fix the compensation to be paid to. all officers required by this charter, or the by-laws or ordinances made in pursuance thereof, not otherwise provided by law.” The plaintiff did not offer in evidence any ordinance of the city fixing or allowing any compensation to the city auditors, nor has the learned counsel for the appellee called our attention to any act of assembly which makes provision for the payment of such auditors, other than the above quoted provision vesting the power in the council of the city. The appellee relies exclusively upon the provision of the Act of April 5,1867, P. L. 841, fixing the compensation of the auditors of the old borough of Wilkes-Barre, at “two and one-half dollars, for each day’s actual service.” It is manifest that this provision cannot be made to apply to the auditors of the city of Wilkes-Barre, of which the borough of Wilkes-Barre became a part. The creation of the city of Wilkes-Barre, in 1871, was an exercise of the sovereign power which at that time was, in such matters, free from constitutional limitations. The borough of Wilkes-Barre and the township of Wilkes-Barre were incorporated into a city. The borough as a distinct municipality ceased to exist, and there was no more reason why the city auditors should be paid the amount which the borough auditors had formerly received than there was for regulating their compensation by what had been formerly paid the township auditors. The legislature, however, in this matter left nothing to inference, for it expressly declared that the powers, offices, and duties of the auditors of the borough of Wilkes-Barre should cease and expire. The auditors of the city of Wilkes-Barre were not therefore the successors in office of the auditors of the old borough. The power to fix the compensation of the city auditors was by the legislature expressly delegated to the council of the city. When a public officer claims a salary, fees, or compensation for services rendered to the public, he must show a statute or a municipal ordinance authorized by statute giving compensation. If he cannot do this, he cannot recover: Rothrock v. Easton School District, 133 Pa. 487. The plaintiff having failed to show any ordinance of the city fixing the amount of his compensation, the defendant was entitled to an unqualified affirmance of its request for a finding, that under all the evidence the judgment must be for the defendant, and the first assignment of error is sustained.

Even if it be assumed that the provisions of the act of 1867, defining the duties and fixing the compensation of the board of auditors of the borough of Wilkes-Barre, continued in force and applied to the board of auditors under the government of the city incorporated by the act of 1871; or if the council of the city subsequently to 1871 did ordain that the city auditors should be compensated at the rate of $2.50 for each day of actual service, the plaintiff was still not entitled to recover upon the facts as presented in the court below. The compensation permitted under the act of 1867 was not a fixed salary nor was it fees; it was a per diem allowance for each day of actual service by the auditors in the performance of their duty, and there could be no recovery, under this statute, for time which was not actually spent in the discharge of such duties. The city could not be charged because its ministerial officers refused to submit their books and the accounts were thus permitted to remain unaudited. The duty of the various officers to submit their books to the board of auditors, if such duty existed, was a purely ministerial one and performance could have been compelled by mandamus. If it was the duty of the board of auditors to audit the accounts, they could only become entitled to the compensation upon performance of the work for which they are asking to be paid. They could not permit the accounts to remain unaudited and then demand payment for the time which the performance of their duty would. have required. The plaintiff neither alleged nor proved that he had spent a single day in the actual performance of his duties; all that he did prove was that certain officers of the city had refused to perform the ministerial act of submitting their accounts for auditing, and because of that refusal he now seeks to recover of the city compensation for the time which would have been required in the performance of the duty, which he did not perform. The plaintiff offered no evidence tending to establish that, there had been any corporate action of the municipality, as such, which interfered . with the action of the board of auditors.

Municipal corporations are created, governed and the extent of their powers determined by the legislature and subject to change, repeal or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. The offices of the municipality are not public offices under the protection of the constitution, and the legislature has the power in imposing a new form of government on a city to change the duties and compensation pertaining to the various municipal offices or to abolish any office and consolidate its duties with some other department of the city government: Commonwealth v. Moir, 199 Pa. 534; Neuls v. Scranton City, 20 Pa. Superior Ct. 286. An office which is not constitutional exists by the will of the legislature only, and may be changed, its duties transferred to some other department of the municipality, or entirely abolished at any time, and the incumbent has no standing to complain: McCormick v. Fayette County, 150 Pa. 190; Commonwealth v. Weir, 165 Pa. 284; Lloyd v. Smith et al., 176 Pa. 213. The Acts of May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277, providing for the incorporation and government of cities of the third class require the election of a city comptroller, transfer to that officer all the duties of city auditors and by clear implication abolish the last-named office. Section 57 of the' act of 1874 does in general terms extend the terms of the mayor, councils, school directors and other officers of cities which surrender their special charters and become cities of the third class and the board of auditors of the city of Wilkes-Barre would come within this general designation. This provision was intended as a temporary expedient to bridge over the period of change from one form of government to another. It is not to be construed in such a manner as to defeat the general purpose of the entire statute and is not to control other sections of the act to which it is absolutely repugnant. The statute is to be so construed, if possible, as to give effect to all its provisions. The act of 1874, section 39, ordains that: “The qualified electors of each of said cities of the third class shall on the third Tuesday in February succeeding the issuing of letters patent thereto, .... elect a city comptroller to serve for the term of two years, from the first Monday of March next succeeding his election; he shall before entering upon his office take and subscribe an oath or affirmation before the mayor faithfully to discharge the duties thereof,” and then follow eight clauses defining the duties and powers of said officer, among which are all the duties now enjoined on the county auditors by the laws of this state, and shall.scrutinize, audit and settle all accounts whatever in which the city is concerned, either as debtor or creditor.” This section unquestionably transferred to and imposed upon the comptroller all the duties that had formerly been performed by the board of auditors of the city of Wilkes-Barre. The city of Wilkes-Barre became a city of the third class on September 23, 1898, and the section of the act of 1874 last referred to required that a city comptroller should be elected on the third Tuesday in February, 1899, and that he should enter upon the discharge of the duties imposed upon him by the statute on the first Monday of March next succeeding his election. The law required that all expenditures by the city after that date should be supervised by the comptroller and that he should audit and settle all the financial transactions of the city arising after he so entered upon the duties of his office. It is not necessary to determine how long the board of auditors nominally remained in office, all the duties which that board had formerly performed were, as to the financial transactions of the city arising after the first Monday of March, 1899, transferred to and imposed upon the city comptroller.

When, in 1898, the city of Wilkes-Barre became a city of the third class, it had among its officers this board of auditors, composed of three persons. One of this board of auditors had been elected in 1896, the term for which he was elected expiring on the first Monday of April, 1899, another, this plaintiff, had been elected in 1897, the term for which he was elected extending to the first Monday of April, 1900, and the third auditor had been elected in 1898, for the term ending the first Monday of April, 1901. The city having become a city of the third class no auditor could lawfully have been elected in 1899, to succeed the member of the board whose term expired on the first Monday of April, 1899, but the effect of section 57 of the act of 1874 was to extend the term of that member of the board from the first Monday of April, 1899, to the Friday following the third Tuesday in February, 1900, thus continuing the board of auditors of the full number contemplated by the act of 1871. When the city surrendered its charter and'became a city of the third class the board of auditors were engaged in auditing the accounts for the year ending the first Monday of April, 1898, and the board continued that work until almost the end of that fiscal year. The accounts for the fiscal year beginning the first Monday of April, 1898, had not been audited when the newly elected city comptroller entered upon the discharge of his duties on the first Monday of March, 1899, and as the expenditures had already been made under the old system the act of 1874 did not contemplate the auditing of those accounts by the new officer under the new system provided by that statute. The result of the continuance in office of the board of auditors, by section 57 of the act of 1874 of the full number required by the act of 1871 was that there was from the first Monday of April, 1899, to the Friday following the third Tuesday in February, 1900, a board of auditors duly authorized to audit the accounts of the city officers during the period intervening between the first Monday of April, 1898, and the first Monday of March, 1899. The purpose of section 57 of the act of 1874 was thus accomplished. The board of auditors constituted as required by the act of 1871 had jurisdiction to audit and did audit the accounts of the city officers down to the first Monday of March, 1899, and all accounts, subsequent to that time were audited by the city comptroller, as required by the act of 1874. The Act of April 5, 1867, P. L. 841, relating to the borough of Wilkes-Barre, and the Act of May 4, ■ 1871, P. L. 539, incorporating the city of Wilkes-Barre, each provided for an auditing of the accounts of the various city officers by a board composed of three auditors. The duties of this board were in their nature deliberative or judicial, and in case all the auditors convened a majority of the board were vested with the power to adjudge. It may be, for the purposes of this case, conceded that two of the auditors, in case the third could not attend or ev'en in case of a vacancy, had the power to act. When, however, on the Friday following the third Tuesday in February, 1899, the term of one of the auditors, as extended by section 57 of the act of 1874, expired he, by the express provision of the statute went out of office, and, as the office had been abolished, no successor could be elected. This was something more than the mere happening of a vacancy, to fill the board to the number required by the act of 1871 would be unlawful. The act of 1871 required. that the auditing should be done by a board composed of three auditors, the purpose of requiring this number was because the advice and opinions of all might be useful, though all might not unite in the opinion. When as the result of subsequent legislation -it became impossible to lawfully convene the board of three auditors required by the act of 1871, the fragment of the board remaining in office were without authority to perform the duties - contemplated by that act, and the board, as a board, ceased to exist: Baltimore Turnpike, 5 Binney, 481.

The judgment of the court below is reversed and judgment is now entered in favor of the defendant.

Rice, P. J.,

concurring:

As I understand the opinion of the majority of the court upon the first question discussed, it would logically follow that even if it had been the plaintiff’s duty to audit the accounts of the year in question, and he had audited them, nevertheless, he could not recover in this action because he failed to show any ordinance or local act fixing the compensation of city auditors in the city of Wilkes-Barre. This necessarily involves a decision that the provision of sec. 10 of the act of 1871, keeping in force certain acts relating to the borough of Wilkes-Barre, was not effectual to keep in force and make applicable to auditors elected after Wilkes-Barre became a city the provision of sec. 3 of the act of 1867 quoted in the opinion. I am not at present prepared to commit myself to that proposition, and as the case appears to have been tried in the court below, and certainly was argued here, upon the theory that at the time the plaintiff was elected the compensation was legally fixed at “two and one-half dollars for each day’s actual service,” and as we hold that even in that view the plaintiff is not entitled to recover, I feel justified in withholding an expression of opinion upon the question of the applicability of the act of 1867. As to the other ground of decision, I concur in the conclusion and in the reasoning of our Brother Porter’s opinion in support of it.

Henderson, J., concurred in the judgment.