text:
    Stage v. Smith, Appellant.

      Affidavit of defense — Set-off—Sale of land — Vendor and vendee— Statute of frauds.

    1. In an action on a promissory note an affidavit of defense is insufficient which avers that the defendant sold to plaintiff an interest in land covered by a contract with a third party, at a price more than the amount claimed by plaintiff, but does not set forth the contract. If the contract was in writing it must be attached to the affidavit of defense. If it was not in writing, it was void under the statute of frauds. In either case the averment of set-off is insufficient.
    2. An affidavit averring set-off must set forth with particularity and certainty all material circumstances connected with the alleged set-off.
    Argued Oct. 28, 1909.
    Appeal, No. 37, Oct. T., 1909, by defendant, from order of C. P. Clearfield Co., Sept. T., 1908, No. 416, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Isaac Stage v. H. Van Smith.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    Smith, P. J., filed the following opinion:
    Plaintiff’s statement claims to recover from the defendant the sum of $1,000, with interest from June 1, 1903. The suit is based upon a common promissory note, dated March 2, 1903, payable ninety days after date, to the order of Isaac Stage, for $1,000, at the Clearfield National Bank, which note it is alleged remained unpaid at the time of the bringing of the suit.
    The defendant, in his affidavit of defense, admits the making of the note in suit, but alleges a defense to the whole of the plaintiff’s claim in the nature of a set-off, together with the right to recover in addition thereto the sum of $1,775 from the plaintiff. Said affidavit of defense alleges that the defendant, in January, 1901, became the owner of certain contracts, partly for coal and partly in fee, for 185 acres of land in Karthaus township, Clearfield county, Pennsylvania, and that some time in July, 1902, the plaintiff, Isaac Stage, “bought from him and he, the defendant, sold to the plaintiff, a one-half interest in the coal and other minerals covered by the contracts with Barmoy, Miller and Weaver & Burge, and the plaintiff agreed to pay to the defendant therefor at the price or sum of $30.00 per acre for the whole, that is to say, $3,775 for the one-half interest in the 185 acres.” Defendant further avers that he has given credit for the sum of $1,000 on account of the purchase money due from the plaintiff to the defendant on the said undivided interest and that he is ready and willing to convey said undivided interest to the plaintiff upon payment of the balance due;
    Plaintiff’s counsel urges that this affidavit is insufficient for the reason that it set up in defense an alleged contract for the purchase of real estate, without alleging that the same was in writing and by inference at least from the affidavit that it was an oral contract. The language of the affidavit is vague and indefinite in setting up a valid contract for the sale of real estate, both in the matter of. description of the subject-matter of the contract alleged to have been made as also in the nature and character of the contract as to whether written or oral. If an oral contract, it certainly cannot be sustained, and in our judgment where an affidavit of defense sets up, as this affidavit pretends to do, a defense wholly outside of the contract sued upon, a valid contract or one enforcible in law must be alleged. It will be noticed that the affidavit carefully refrains from saying that it is oral but does not say that it was written, and defendant’s counsel argues that the court has no right to assume from the language used that it was an oral contract. It will be noticed that the words used are “bought from him and he, the defendant, sold to the plaintiff,” and it is claimed that this must be presumed to allege a valid, binding and legal contract. Counsel claims as authority for this position, the case of Smith v. Stevenson, 190 Pa. 48. In that case action was brought for plastering and furnishing the material for fifty-two houses. Defendant’s affidavit of defense admitted the agreement for plastering and furnishing as claimed for, in a bid accepted by the defendants, “Plaintiff agreeing however to take in part payment thereof a property situate,” etc., followed by a definite description of the property in metes and bounds, price and terms of payment. Mr. Justice Green, in his opinion, says: “We cannot know whether the agreement was in writing or in parol, but in order to exclude it from the consideration of the jury we would be bound to infer that it was a verbal agreement, and that there were no circumstances which could or might suffice to take it out of the operation of the statute of frauds. We are not at liberty to make either inference for the purposes of the present contention. The affidavit alleges an agreement, and the subsequent performance of the agreement on part of the defendants. We cannot assume the defendants allege an illegal agreement. The proper inference from the bare averment must be that it was a valid agreement, especially as it is followed by an allegation of performance of its terms by the defendants.” It will be noticed that the defense set up is one growing out. of the same contract or agreement on which the suit was brought and that the subject-matter of the suit on the part of the plaintiff and the subject-matter of the defense are one and the same. The Supreme Court assumes that the defense alleged is based on a legal or valid contract. In the case which we are now considering the defendant alleges an independent contract, one wholly outside of the subject-matter of the suit. He, moreover, sets up the right to recover against the plaintiff a definite sum of money. In such cases it is or should be the universal practice of an affidavit of defense to set out in clear/ distinct terms a valid and enforcible contract and not leave anything either to be assumed or presumed by the court.
    The practice act of May 25, 1887, requires an affidavit of the defense, and for the want thereof or want of a sufficient affidavit judgment may be moved in court “in accordance with the present practice in actions of debt and assumpsit.” The rules of court of Clearfield county, adopted prior to the passage of said act of 1887, provided for a judgment by default on failure of the defendant to file an affidavit of defense “setting forth the nature and character of the same.” It is said by Justice Shabswood, in Peck v. Jones, 70 Pa. 83, “An affidavit of defense which is required by law or rule of court to set out the nature and character of the same, ought to aver distinctly either upon knowledge or information and belief every fact necessary to constitute a defense. Nothing should be left to mere inference.” So also, an affidavit of defense which alleges fraud in general terms and does not distinctly set forth the facts constituting the fraud, was held insufficient: Matthews v. Long, 3 W. N. C. 512. Where an affidavit seeks to set up as a defense a set-off and does not state the items, time or other particulars to render a valid or tenable claim, it was held insufficient: Louchheim v-. Becker, 3 W. N. C. 449. Where an affidavit of defense refers to a paper, it is held that a copy must be annexed in order that the court may judge of its legal effect: Erie v. Butler, 120 Pa. 374.
    This affidavit sets up an independent, contract between the parties, alleging not only the right to set off the full amount of the claim of the plaintiff, but asserts the right to recover a balance of 11,775, without alleging that the contract was in writing, or if in writing, without appending a copy thereof to the affidavit. In our judgment it is wholly insufficient as a defense and violates the principles of pleading. The court has a right to assume that it was oral, in the absence of an allegation that it was written. If oral, it cannot be sustained: Sands, Herdic & Co. v. Arthur, 84 Pa. 479; Conrade v. O’Brien, 1 Pa. Superior Ct. 104, and numberless other cases in which the same principle is involved. The plaintiff is entitled to judgment for want of sufficient affidavit of defense.
    December 13, 1909:
    Now, January 15, 1909, judgment is directed to be entered against the defendant, in favor of the plaintiff, in the sum of $1,000, with interest from June 1, 1903, making a total of $1,337.

      Error assigned was the order of the court.

      A. M. Liveright, with him David L. Krebs and S. V. Wilson, for appellant,
    cited: Muir v. Ins. Co., 203 Pa. 338; Taylor v. Beatty, 202 Pa. 120; Smith v. Stevenson, 190 Pa. 48; McCoy Lime Co. v. McCoy, 16 Montg. 32.

      W. C. Miller, for appellee,
    cited: Peck v. Jones, 70 Pa. 83; Matthews v. Long, 3 W. N. C. 512; Louchheim v. Becker, 3 W. N. C. 449; Erie City v. Butler, 120 Pa. 374; Sedam v. Shaffer, 5 W. & S. 529; Pattison v. Horn, 1 Grant, 301; Sausser v. Steinmetz, 88 Pa. 324; Rineer v. Collins, 156 Pa. 342; Meason v. Kaine, 63 Pa. 335; Conrade v. O’Brien, 1 Pa. Superior Ct. 104.
   Opinion by

Beaver, J.,

The plaintiff sought to recover from the defendant in this case the amount of a promissory note, dated March 2, 1903, payable ninety days after the date thereof. The defendant, in his affidavit of defense, admits the making of the note in suit, but avers that the year previous to its date, to wit, in July, 1902, he “sold to the plaintiff a one-half interest in the coal and other minerals covered by the contracts with Barmoy, Miller and Weaver & Burge, and the plaintiff agreed to pay to the defendant therefor at the price or sum of thirty dollars per acre for the whole, th&t is to say,- two thousand, seven hundred and seventy-five ($2,775) dollars for the one-half interest in the 185 acres.”

The defendant does not allege that he acquired title to the coal and other minerals covered by contracts with Barmoy, Miller and Weaver & Burge, nor does he specify in what manner the sale of the half interest in these lands was made to the plaintiff. If in writing, it was his duty to attach a copy of the agreement under which, as he alleges, the sale was made. In his failure to do so, it may be very fairly assumed that the sale was not in writing, otherwise a copy of the agreement would have been attached to his affidavit. If not in writing, the sale was void under the statute of frauds and perjuries. If we can assume that the sale was in writing, the affidavit is bad, because the copy of the writing is not attached. If we are authorized to assume, because of the absence of the copy of the agreement, that the sale was not in writing, then the sale was not binding upon the plaintiff and the set-off is not good. In either event, as we view the affidavit of defense, the court very properly entered judgment for want of a sufficient affidavit of defense.

The appellant cites, and seems to rely with great confidence upon, the case of Smith v. Stevenson, 190 Pa. 48. That case, it seems to us, is clearly distinguished from the present one, as is pointed out very clearly by the court below in its opinion making the .rule for judgment absolute.

In addition to the reasons set forth in that opinion, it may be further said that the Supreme Court, in the case cited, seems to rely particularly upon the fact that the defendant alleged performance of the terms of his agreement, Mr. Justice Green, who wrote the opinion, saying: “The proper inference from-the bare averment must be that it was a valid agreement, especially as it is followed by an allegation of performance of its terms by the defendants.” There being not only an allegation of defense to the amount of the plaintiff’s claim, but of a specific set-off for a much larger amount than that claimed by the plaintiff, in which the defendant asserts his right to a certificate for $1,775, there should be such a specific statement of the claim of the defendant as would warrant recovery in action by defendant against plaintiff. “An affidavit averring set-off must set forth with particularity and certainty all material circumstances connected with the alleged set-off: ” 1 P. & L. Dig. of Dec. 240.

It is unnecessary to recite the numerous authorities contained in the opinion of the court below, inasmuch as that opinion will doubtless be published in full in connection with the report of the case.

Judgment affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Neumann’s Estate.

      Will — Conversion—Power of sale.

    1. A conversion under a will only takes place when (1) there is a positive direction to sell, or (2) an absolute necessity to sell for the purpose of carrying out the provisions of a will, or (3) such a blending of real and personal estate by the will as clearly discloses an intention on the part of the testator to create a fund out of both real and personal property which he bequeaths as money.
    2. Where there is no positive direction to sell, and a power only is given to the executors to be exercised at their discretion, and there is no absolute necessity to sell apparent from the terms of the will, the will works no conversion of the real estate.
    .3. Lands subject to a power of sale pass to the devisee until the power is exercised, pending which exercise the devisee is entitled to the rents.
    Argued Oct. 6, 1909.
    Appeal, No. 40, Oct. T., 1909, by Helen G. Mnletter, from decree of O. C. Phila. Co., Jan. T., 1891, No. 27, dismissing exceptions to adjudication in Estate of Joseph Neumann, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Testator gave all of his estate, real and personal, to his widow and daughter for their lives and the life of the survivor of them. On their death $25,000 in five legacies of $5,000 each was given to certain charitable institutions. Testator further directed as follows:
    “ Sixth. Two-thirds of the balance of my estate, after the death of my wife and daughter, I give and bequeath to the child or children, my said daughter Anna Clara may leave surviving her, or the issue of any deceased child or children, such issue to take the share his her or their parent would have taken if then living, provided and only in the event as each of them attains the age of twenty-one years, such child or children, or the issue of such child or children to be supported and maintained out of the income during minority.
    “ The rents, issues, profits and income of the remaining one-third of my estate, I give, bequeath and devise to my son-in-law Horace Pinckney for and during the term of his natural life, and after his death, I give the principal or one-third to the child or children my said daughter may leave surviving her as above more fully set forth.
    “Tenth. I give my executors full and ample power and authority to sell any part or the whole of my real estate, upon such terms and in such manner as in their judgment will be most advantageous, provided the orphans’ court of said city approves the same — -And I order and direct that no security or bond of any kind shall be required of my executors.”
    On the death of his wife and daughter, and the extinction of his own line, he bequeathed three sums of money, namely, $50,000, $30,000 and $30,000 in trust for his niece (the appellant) and his widow’s two sisters for their lives, and $1,000 each to the two children of a relative. Ten (by codicil, thirteen) charitable institutions were then made his residuary legatees. A codicil of February 8, 1889, republishing the will, reduced the $50,000 legacy to the appellant to $30,000, and made some minor changes and additions to the list of residuary legatees.
    Testator was survived by his widow and daughter, the latter without issue.
    Subsequently the daughter died leaving no issue, and her death was followed by the death of the widow.
    Letters testamentary were granted to the Provident Life & Trust Company. The latter filed an account showing as principal for distribution proceeds of certain real estate. The income was from rents collected since the death of the widow. The auditing judge awarded the principal among the five charitable legatees, and the income among the residuary-legatees.
    December 13, 1909:
    Exceptions to the adjudication were filed by Helen G. Einletter.
    The court in banc in opinions by Lamorelle, J., and Pen-rose, J., dismissed the exceptions to the adjudication.

      Errors assigned were in dismissing exceptions to the adjudication.

      William H. Shoemaker, with him Thomas D. Finlettei', for appellant.
    The will worked a conversion: Vanuxem’s Est., 212 Pa. 315; Rose’s Est., 19 Phila. 98; Fahnestock v. Fahnestock, 152 Pa. 56; Hunt’s App., 105 Pa. 128; Rauch’s Est., 21 Pa. Superior Ct. 60.

      Ira Jewell Williams, with him Alex. Simpson, Jr., and C. B. D. Richardson, for appellee.
   Opinion by

Henderson, J.,

It has frequently been said that a conversion under a will only takes place when (first) there is a positive direction to sell, or (second) an absolute necessity to sell for the purpose of carrying out the provisions of a will, or (third) such a blending of real and personal estate by the will as clearly discloses an intention on the part of the testator to create a fund out of both real and personal property which he bequeaths as money: Hunt’s App., 105 Pa. 128; Irwin et al. v. Patchen, 164 Pa. 51; Cooper’s Est., 206 Pa. 628; Scott’s Est., 37 Pa. Superior Ct. 198. There is no positive direction to sell in the will under consideration. A power only is given to the executors to be exercised at their discretion. Nor can it be successfully contended that an absolute necessity to sell is apparent from the terms of the will. If the testator’s daughter had left issue over the age of twenty-one years the provisions of the will would have been fully executed without any necessity for the sale of the real estate, and certainly the occurrence of this contingency could not have been in the testator’s mind as a fact inducing him to contemplate a conversion in any event. If the will provided a scheme of distribution which necessarily involved the sale of the real estate, there would be force in the appellant’s argument. Vanuxem’s Est., 212 Pa. 315, would be an authority in support of it. But it is only because a conversion of real estate into money without any conditions or contingencies was necessary to carry out the provisions of the will that the conclusion was reached in that case. The court held that the testator must have foreseen the necessity for the sale of his real estate to carry out his scheme in dividing his estate by bestowing the pecuniary legacies. But here the legacies might never become payable, in which case there need be no sale.

Lands subject to a power of sale pass to the devisee until the power is exercised, pending which exercise the devisee is entitled to the rents.

The conclusion of the orphans’ court is in harmony with the adjudicated cases and the decree is affirmed.


author: Beaver, J.,

text:
    Barclay v. Lehigh Coal & Navigation Company, Appellant.

      Banks and banking — Checks — Mailing check — Indemnity—Evidence — Question for jury.

    In an action to recover an amount of money represented by a lost check, where the evidence is not conclusive that the defendant properly mailed the check, the plaintiff may show by his own testimony that he never received the check without first proving that he had tendered a bond of indemnity to the defendant.
    Argued Oct. 14, 1909.
    Appeal, No. 256, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 4,240, on verdict for plaintiff in case of William K. Barclay v. Lehigh Coal & Navigation Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      December 13, 1909:
    Assumpsit to recover the amount of a lost check. Before Brégy, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $329.29. Defendant appealed.

      Errors assigned were (1) ruling on evidence set forth in the opinion of the Superior Court, and (3) refusal of binding instructions for defendant.

      Arthur G. Dickson and James McMullan, with them H. Gordon McCouch, of Dickson, Beitler & McCouch, for appellant.

      Wm. Clarke Mason, with him Franklin S. Edmonds, for appellee.
   Opinion by

Beaver, J.,

When this case was previously here, 33 Pa. Superior Ct. 214, our decision was based upon the consideration of the statement and affidavit of defense, the allegations of the affidavit of defense being, of course, taken as facts.

The essential facts, as recited by our Brother Morrison, who delivered the opinion of the court, were that: “On November 27,1900, plaintiff was the registered owner of 149 shares of the capital stock of the defendant company, on which a dividend, amounting to $223.50, had been duly declared, payable on that day. On November 26, 1900, defendant company deposited in the mail, postage prepaid, an envelope addressed to the plaintiff at his proper address in Philadelphia, containing a check to plaintiff’s order for $223.50, in payment of 'said dividend, pursuant to a written order dated November 12, 1896, from the plaintiff to the defendant, directing that all such dividends be sent to the plaintiff in that way to that address.”

It was not denied that the plaintiff did not receive the check, but, inasmuch as the check was assumed to have been mailed in accordance with the order of the plaintiff, the duty of the defendant was discharged, and it was, therefore, incumbent upon the plaintiff to offer, as he was requested to do, an agreement to indemnify and save harmless the defendant company against any claim upon said lost check by the holder thereof.

At the trial of the case, whilst the testimony of the defendant was such as to justify an inference of the mailing of the dividend check to the plaintiff, it did not establish the fact of the mailing beyond a peradventure. Neither of the employees of the company having charge of the mailing of the check could testify that the particular check, drawn to the order of the plaintiff, had been actually mailed. The question, therefore, became one for the jury and raised an entirely different issue from that presented by the pleadings taken as verity.

After the plaintiff was sworn as a witness, in response to the request of the defendant, the following offer was made: “ Mr. Mason: I offer to prove by the plaintiff that he did not receive such dividend on the 27th day of November, nor any time thereafter,” to which Mr. McMullan, for the'defendant, objected: “I object to any evidence whatever in this case, until evidence is offered showing that the plaintiff has tendered to the defendant an indemnifying bond, as required by the opinion of the Superior Court in this case,” upon which offer and objection it was ruled: “The Court: I overrule the objection. In the present condition of affairs, there is nothing to show that any indemnity is needed.” This action of the court constitutes the first assignment of error.

The objection of the defendant is, of course, based upon the assumption that the conditions were the same' as those before this court at the time our previous decision was made, but they were not the same. Instead of assuming, as we were bound to do in our previous consideration of the case, that the check had been mailed, that question was one for the jury as the case stood when the offer was made, and inasmuch as the jury has found for the plaintiff upon a clear and explicit presentation of the case by the court below for their consideration, we must assume that the check was not mailed by the defendant to the plaintiff and that, therefore, it was not incumbent upon the plaintiff to tender indemnity before bringing suit for the dividend which was due him in 1900. Whether the check was mailed, whether lost in the mail or lost after it reached the address of the plaintiff, as furnished by him to the defendant, were questions clearly submitted to the jury. As the principal summing up of the charge, the court below said: “Are you satisfied from the testimony — from what the officers said and what Mr. Barclay said, that this check was mailed to him at that time? If so, your verdict ought to be for the defendant. If not, your verdict ought to be for the plaintiff.”

Both sides asked for binding instructions, which were declined. Although presented in different forms, these are the grounds upon which the defendant seeks to have the judgment reversed. In our opinion, there is no ground for reversal. The court fairly submitted the questions involved to the jury and they were clearly for their decision. Having found as they did, we must assume that the check of the defendant, payable to the order of the plaintiff, for the dividend due November 27, 1900, was not-mailed in accordance with the directions of the plaintiff. In that event, the default was that of the defendant and not of the plaintiff, and there was no necessity for indemnity on the part of the plaintiff to the defendant. The judgment was, therefore, properly entered upon the verdict.

Judgment affirmed.


author: Rice, P. J.,

text:
    Haspel, Receiver, v. Lyons, Appellant.

      Execution — Sheriff’s sale — Setting aside of sale — Discretion of court— Revieio.

    1. The action of the court of common pleas in setting aside a sheriff’s' sale of real estate before acknowledgment of a sheriff’s deed, will not be reversed, where it appears that the property was assessed for taxation at $1,200, that its real value was $800, that the bid at the sale was $200, and that an attorney employed to attend the sale and bid to the sum of $800 had failed to do so because of his misapprehension as to the discharge of a lien upon the property.
    2. While inadequacy of price is not of itself sufficient to justify the setting aside of a sheriff’s sale, yet when there is great inadequacy, the court may seize upon other circumstances in order to give relief. Its discretion in doing so, if properly exercised, will not be reviewed by the appellate court.
    Argued Oct. 12, 1909.
    December 13, 1909:
    Appeal, No. 110, Oct. T., 1909, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 823, making absolute rule to set aside sheriff's sale of real estate in case of Lewis A. Haspel, Receiver of the United Building & Loan Association, v. Bridget McLaughlin-Lyons and Frank B. Ellis.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to set aside sheriff’s sale.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute order to set aside sheriff’s sale.

      Joseph E. Sagebeer, for appellant.
    Inadequacy of price alone is not sufficient reason to set aside a sheriff’s sale, and the setting aside of a sheriff’s sale for no other reason than inadequacy of price is such an abuse of discretion as will require the Supreme Court to reverse the decree: Young’s App., 2 P. & W. 380; Cummins v. Little, 16 N. J. Eq. 48; Myers’s Est., 192 Pa. 458; Weitzell v. Fry, 4 Dallas, 218; Trust Co. v. Kelly, 185 Pa. 131; Stroup v. Raymond, 183 Pa. 279.

      Edmund Randall, with them Thomas A. Mullin and James A. Flaherty, for appellee.
    The exercise of the power to set aside a sheriff’s sale is purely a matter of judicial discretion with the lower court and an appellate court will not review its exercise, except in extreme cases of abuse: Light v. Zeller, 195 Pa. 315; Germer v. Ensign, 155 Pa. 464; Laird’s App., 2 Pa. Superior Ct. 300; Ritter v. Getz, 161 Pa. 648.
   Opinion by

Rice, P. J.,

An application to set aside a sheriff’s sale before acknowledgment of the deed belongs to the class of cases in which the courts of common pleas have immemorially exercised discretionary power. The appellate court will not presume that the court below acted arbitrarily and without proper proof of facts upon which to base its action, and will not reverse such action, whether setting aside or refusing to set aside, unless there be error of law apparent in the record or abuse of discretion be shown. It was alleged in the defendant’s petition for the rule to show cause why the sheriff’s sale of her real estate should not be set aside, and was not denied in the answer of the plaintiff or of the purchaser, that the property which was struck down upon the latter’s bid of $200, was assessed for the purpose of taxation at $1,200 and was worth at least $800, which latter sum, it was alleged, the defendant’s husband was and is willing to pay for the same. Other averments of the petition will be referred to later. The petition was presented two days after the sale. The rule was made absolute upon payment of the sheriff’s costs and entry of a bond to secure a bid of $800 at the next sale. The hardship that would result from permitting the sale to stand in the face of the certainty that at a resale the property would bring approximately what it was worth, which was at least four times the sum bid by the appellant, would appeal very strongly to the conscience of a court having discretionary authority to set aside a judicial sale for gross inadequacy of price. But it always was the rule that mere inadequacy of price, without more, is not sufficient ground for setting aside a sheriff’s sale made upon an execution regularly issued. And it was declared in Stroup v. Raymond, 183 Pa. 279, that where the common pleas sets out its reasons for setting aside' the sale, and it affirmatively appears therefrom that its sole reason was inadequacy of price, the appellate court will reverse the order as a palpable abuse of discretion. In the present case the court did not set out its reasons, but even if it be assumed that no other reason was alleged or shown than those set out in the petition, it does not necessarily follow that there was such manifest abuse of the discretion in setting aside the sale as would justify a reversal of the order. The petition contains certain allegations as to what took place at the sale, which, if true, were proper to be taken into consideration in connection with the' undisputed gross inadequacy of price. Whether they were true or not was for the court’s determination exclusively, and its conclusion upon that question of fact is not reviewable upon appeal. If authority for the latter proposition be needed, it, as well as the reason upon which it rests, will be found in Laird’s App., 2 Pa. Superior Ct. 300, and the cases there cited. But apart from these allegations, there is the allegation that an attorney was employed to attend the sale and bid in behalf of defendant’s husband the sum of $800, and that he did attend but neglected to bid beyond $200 because of his misapprehension as to the discharge of the lien of the judgment on the mortgage. This was a mistake of law, it is true, but the cases show that the courts have seized on similar mistakes where there was gross inadequacy of price, and in so doing have been held not to have abused their discretionary power: See 1 T. & H. Pr., sec. 1272; also Phillips v. Wilson, 164 Pa. 350; Fidelity Building & Loan Assn. of Lebanon v. Uhler, 199 Pa. 417; Ritter v. Getz, 161 Pa. 648; Stroup v. Raymond, 183 Pa. 279. We cite these cases not because all of them are exactly parallel with the present, but because they relate particularly to the subject of mistake and surprise as ground for relief when connected with gross inadequacy of price. The cases are very numerous in which it has been declared to be the settled rule that while inadequacy of price is not of itself sufficient to justify the setting aside a sheriff’s sale, yet when there is great inadequacy the court may seize upon other circumstances in-order to give relief. In one of the latest cases it is said: “What other circumstances are sufficient for this purpose is largely in the discretion of the court below, and whether or not we should in its place have reached the same conclusion in the present case, we have not been convinced that there was error which calls for reversal:” Light v. Zeller, 195 Pa. 315. The same may be said with equal propriety in the present case.

The appeal is dismissed at the costs of the appellant.


author: Porter, J.,

text:
    Lefever’s Estate.

      Practice, O. C. — Decree of distribution — Modification of decree — Appeal — Lunacy.
    Where the orphans’ court has entered a decree in exact accordance with the judgment and opinion of the appellate court, such decree will not be reversed on a second appeal, because there was filed in the orphans’ court, after the-decree was entered, a record from another state showing that one of the distributees had been adjudicated a lunatic. In such a case the appellate court will affirm the decree and direct that the share of the lunatic shall be paid over to the latter’s committee upon proof to the orphans’ court that the committee had entered a proper bond.
    Argued Nov. 12, 1909.
    December 14, 1909:
    Appeal, No. 195, Oct. T., 1909, by Amos D. Lefever et al., from decree of O. C. Lancaster Co., March T., 1907, No. 9, distributing estate of John Lefever, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Distribution of estate of John Lefever, deceased.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of the court, and that the court erred in not awarding the share of Daniel D. Lefever to his guardian .or committee in lunacy.

      Hugh R. Fulton, with him H. M. Houser, for appellant.

      W. H.-Kready, with him F. B. Donesthorpe, for appellee.
   Opinion by

Porter, J.,

This is the second appeal which has reached this court from a decree by the court below distributing the fund which now is, and long has been, in the hands of George N. Lefever, executor, one of these appellants. The former appeal was by Mary Lefever, widow, Henry D. Lefever and Amos D. Lefever, and the disposition of said appeal is reported in 39 Pa. Superior Ct. 189. The record having been returned to the court below, that court entered a decree of distribution in exact accordance with the opinion and judgment of this court upon the former appeal, and this appeal is absolutely without merit. The provisions of the will of John Lefever are fully set forth in the report of the decision upon the former appeal and it is not necessary here to repeat them. We held in the former appeal that a devise of certain lands in Nebraska to Daniel D. Lefever, in the original will, accompanied by a direction that, in case the testator conveyed the land to Daniel in his lifetime the valuation of $4,000 “either charged against him or a mortgage taken for the same, be canceled; and I hereby give and bequeath unto him, the said Daniel D., the said sum of $4,000 charged for said land,” followed by a codicil declaring that whereas the testator had conveyed the said land to Daniel “ by deed of this date for a consideration of $4,000, I now give and bequeath the said sum of $4,000 to him my said son- Daniel D. Lefever, ” was a bequest of the unpaid purchase money for the land, and not a general bequest of $4,000 in addition to the unpaid purchase money; that, even if the bequest of $4,000 was a general pecuniary legacy, then, under the admission of Daniel D. Lefever that the $4,000 purchase money of the farm had not been paid and that it was to be accounted for in the settlement of his father’s estate, the advancement must be held to be a satisfaction or an ademption of the legacy; and that under the provisions of the will the interest of the widow, Mary Lefever, in the fund was to be ascertained without deducting this sum of $4,000 as a legacy. We said, also, in that case that when it came to the distribution of the other two-thirds of the estate, after ascertaining the interest of the widow, the basis theretofore adopted by the court would reach the correct result, but the amount to which each of the distributees would be entitled must necessarily be decreased. We there said that if Daniel D. Lefever was still to be credited, as between him and Amos D. Lefever and Henry D. Lefever, with the legacy of $4,000 he would still have to be charged with the $4,000 advancement which worked the ademption of that legacy; but if the credit of $4,000 for the legacy was omitted, then the amount of the advancements to him would have to be correspondingly reduced. The present decree of distribution was made by the court below upon the same evidence which had been submitted prior to the former distribution; no new evidence having been offered by any of the parties. The court below ascertained the interest of the widow in the fund in the manner directed by our former decree, and when it came to ascertain the interest of Daniel D. Lefever it did not credit him with the legacy of $4,000 referred to, nor did it charge him with the $4,000 unpaid purchase money for the farm, as an advancement; this reached the. correct result and was an exact compliance with the direction to make distribution in accordance with our former opinion. There was no evidence whatever which would have warranted the court below in treating the $4,000 unpaid purchase money for the farm as a general advancement to be charged against Daniel; the consideration of $4,000 for the farm was, if it remained unpaid, expressly bequeathed to Daniel by the will of John Lefever.

The contention of the appellants that the amount to which, under the will, Daniel D. Lefever was entitled should not have been decreed to him personally, but should have been directed to be paid to his guardian, William H. Stewart, the said Daniel D. Lefever having been legally declared to be insane and W. H. Stewart having been appointed his guardian, and that for this reason the decree must be reversed, is not well founded. There was not before the learned judge of the court below at the time he made his decree any legal evidence that Daniel D. Lefever had by a court of competent jurisdiction been found to be insane, and a court is not to be convicted of error because of something which was not before it. It now appears, however, that a duly authenticated copy of the record of the court in the state of Nebraska having jurisdiction of the matter was filed in the court below some time after the decree was entered, and that record shows that Daniel D. Lefever was duly found to be insane and W. H. Stewart was duly appointed his guardian. The appellee, through his counsel in this court, requests that the decree be amended, by directing that the amount awarded to Daniel D. Lefever be paid to W. H. Stewart, his guardian, and we will so order. The specifications of error are all dismissed.

The decree is affirmed and the appeal dismissed at cost of the appellants. And the court below, upon the production of proof to that court satisfactory, by the filing of a certificate or certificates, duly authenticated according to the act of congress, that William H. Stewart, committee or guardian of Daniel D. Lefever, who has by the courts of the state of Nebraska been adjudged a lunatic, has given bond, with security approved by the proper authority in the state of Nebraska, in double the amount of the fund decreed to the said Daniel D. Lefever; is directed to order that the fund decreed to Daniel D. Lefever be paid to William H. Stewart, guardian or committee of said Daniel D. Lefever, a lunatic.


text:
    Wagner v. King, Appellant.

      Equity — Mistake as to location of wall — Injunction—Trespass—Bill-Cross bill.

    1. Where the plaintiff in a bill in equity prays for an injunction to restrain the defendant from interfering with a wall, and the defendant in a cross bill prays for a mandatory injunction to compel the plaintiff to remove the wall, and the court finds as a fact that the defendant had licensed the plaintiff to build the wall along the division line on defendant’s ground, but that the plaintiff by mistake had erected the wall so that a portion of it encroached over the line designated by the defendant, the court will enter a decree on the cross bill so as to require the wall to be so moved or reconstructed that it shall conform to the line contemplated by the agreement between the parties. In such a case the court will not require it to be wholly removed from the defendant’s premises, and wholly reconstructed on those of the plaintiff.
    2. The fact that the plaintiff in the bill filed a disclaimer to the strip of land on which the wall encroached does not put the defendant in the possession or enjoyment of his property, nor secure to him the incidents of ownership to which, both in law and equity, he is entitled. It is therefore proper that so much of the wall as encroached over the line agreed upon should be removed.

      Argued May 7, 1909.
    Appeal, No. 207, April T., 1909, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 356, on bill in equity and dismissing cross bill in case of John Wagner v. I. K. King.
    Before Rice, P. J., Porter, Henderson, Morrison, Qrlady and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction to restrain the defendant from interfering with or removing a wall.
    The defendant filed a cross bill praying for a mandatory injunction to compel the plaintiff to remove the wall and to erect a new wall wholly on his own ground to support defendant’s soil.
    Frazer, P. J., found the facts to be as follows:
    1. Plaintiff and defendant are owners of adjoining lots situate on Southern avenue in the borough of Mount Oliver; plaintiff’s lot having a frontage of thirty feet five inches on that avenue and extending back 120 feet to Locust street; defendant’s lot having a frontage of fifty-nine and one-half feet and extending back 120 feet to Locust street.
    2. During the year 1907, plaintiff erected in his lot a three-story brick dwelling, with storeroom on the first floor, which he occupies with his family and carries on the hardware business, the building having a frontage or width of twenty-seven feet and extending back sixty-three feet.
    3. About the time the erection of the building was commenced, or shortly thereafter, plaintiff secured defendant’s consent to erect a wall upon defendant’s lot adjoining the division line between their properties for the purpose of retaining in place the soil of defendant’s lot, which was higher than plaintiff’s, and also affording plaintiff the full use as a passageway the three and one-half feet of his lot unbuilt upon. Nothing was said as to the character of the wall, except that it should be of sufficient height to retain “that bank.”
    4. The wall was erected by plaintiff in the fall of 1907 at a cost of $110. It is about eighty-three and one-half feet in length and is entirely on defendant’s lot.. While the understanding between the parties was that the wall should be built along the division line between the properties, its location is three and three-fourths inches beyond that line at the line of the street and seven and three-fourths inches beyond at the rear end thereof.
    5. The rear of defendant’s lot adjoining plaintiff’s line is fitted up for a tennis court, and untiLthis summer has been used as such since the summer of 1902 by defendant and his friends.
    6. The wall at the rear end is not of sufficient height to support the corner of the tennis court adjoining it, and as a result of plaintiff’s excavating his lot to a level with Southern avenue and the want of support along his line, the bank at that point has fallen away, causing quite a depression in the surface, making the same uneven and rendering the court unfit for tennis playing. In erecting the wall plaintiff’s contractor also took down from the side of the court adjoining plaintiff’s lot, the wire netting placed there by defendant for the purpose of preventing balls from being knocked beyond the court.
    7. At the time plaintiff secured defendant’s consent to erect the wall, it was understood and agreed between them that the wall should belong to defendant and might be used by him or removed whenever the improvement of his lot made such removal necessary.
    8. The wall as constructed is of sufficient height to retain in place the front part of defendant’s lot, but is not of sufficient height at the rear to support the front portion of the defendant’s court adjoining plaintiff.
    The court entered the following decree:
    And now, to wit, April 13, 1909, it appearing to the court that the plaintiff has reconstructed the wall at the rear end thereof, erected by him on defendant’s land, so as to afford sufficient support for the bank of the tennis court, and that said tennis court has been placed in .as good condition as it was before the wall was built, and further, that the plaintiff has filed in court a stipulation or disclaimer in writing that no right or interest is to be acquired by him in the land occupied by the wall and the strip outside of it by user or otherwise, except as covered by the oral consent under which the wall was erected, it is hereby ordered and decreed that the preliminary injunction restraining the defendant from interfering with or removing the wall be continued until such time as the improvement of defendant’s lot may make such removal necessary. It is further ordered and decreed that the cross bill be dismissed and the mandatory injunction as prayed for refused. All costs to be paid by plaintiff.

      Error assigned, inter alia, was the decree of the court, quoting it.

      Ernest C. Irwin, for appellant.
    Where a license is given to use or occupy certain property, it protects the licensee in the use or possession of that property only if, and so long as, the conditions under which it is granted are observed by the licensee. If he fails to observe those conditions, the license will not protect him and he becomes a trespasser: Freeman v. Headley, 33 N. J. L. 523; Mumford v. Whitney, 15 Wend. (N. Y.) 380; Dempsey v. Kipp, 62 Barb. (N. Y.) 311; Augusta, etc., R. R. Co. v. R. R. Co., 96 Ga. 562 (23 S. E. Repr. 501).
    Injunction relief may be granted on a cross bill: Atlanta Mills v. Mason, 120 Mass. 244; Van Bibber v. Hilton, 84 Cal. 585 (24 Pac. Repr. 308); Kaegebein v. Higglie, 51 Ill. App. 538.
    Where a party unlawfully takes possession of another’s land the courts invariably grant relief on mandatory injunction: Pile v. Pedrick, 167 Pa. 296; Stanford v. Lyon, 37 N. J. Eq. 94; Baron v. Korn, 127 N. Y. 224 (27 N. E. Repr. 804); Long v. Ragan, 94 Md. 462 (51 Atl. Repr. 181); Norwalk Heating, etc., Co. v. Vernam, 75 Conn. 662 (55 Atl. Repr. 168).

      R. S. Martin, with him J. W. Kraus, for appellee.
    The principle of equitable estoppel operates to make a license irrevocable where the licensee makes valuable improvements, and the parties cannot be again placed in their former positions: Huff v. McCauley, 53 Pa; 206; Le Fevre v. Le Fevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; McKellip v. McIlhenny, 4 Watts, 317; Ebner v. Stichter, 19 Pa. 19; Swartz v. Swartz, 4 Pa. 353; Pierce v. Cleland, 133 Pa. 189.

      December 13, 1909:
   Opinion by

Henderson, J.,

The agreement between the plaintiff and the defendant with reference to the erection of the wall which is the occasion of their controversy was verbal. The trial judge found that a part of that agreement was that the wall should be erected on the defendant’s ground along the division line between the properties, and this finding is supported by all of the evidence. The further fact was found that the plaintiff located and erected the wall on the defendant’s lot three and three-fourth inches beyond the dividing line at the front and seven and three-fourths inches beyond it at the rear end thereof. As a result of this location a strip of the defendant’s land three and three-fourth inches wide at one end and seven and three-fourth inches wide at the other is thrown into the passageway of the plaintiff. This the latter says was inadvertently done. In his answer to the defendant’s cross bill he makes the following statement: “I allege that any encroachment of said wall on King’s lot beyond the dividing line was made and done wholly without my knowledge and consent.” It is evident, therefore, that the wall is not where the parties agreed that it should be, and that the defendant is practically excluded from the enjoyment of the strip of ground across which the plaintiff encroached on his lot. The license was for the wall in a particular place. By mistake or otherwise it was not located in accordance therewith. Upon what principle, then, has the plaintiff standing to insist that he be protected in this intrusion on the defendant’s estate? Certainly not on the ground of estoppel, for the defendant avers in the cross bill that he did not discover until after the wall was built that it encroached on the line agreed upon, and the plaintiff in his answer to the cross bill, as we have seen, declares he did not know that the face of the wall was beyond the established line, nor is there any evidence leading to a different conclusion. It is true that the defendant was present at times during the erection of the wall, but there is not a suggestion in the case that he knew that the plaintiff was trespassing in doing the work. There is Some evidence in the testimony of Mr. Strasberger, who put up the cribbing for the wall, that the plaintiff was present when the cribbing was built, and that the intention was to follow the line of the lots but that the plaintiff told him to keep over an inch or two on the defendant’s property, but none of the evidence intimates that the defendant knew of the encroachment. In the absence of an estoppel the defendant has a right to insist that the license be exercised on the conditions subject to which it was granted. This is a well-recognized rule: Mumford v. Whitney, 15 Wend. 380; Freeman v. Headley, 33 N. J. L. 523; Dempsey v. Kipp, 62 Barb. 311. If then the plaintiff is occupying land of the defendant not covered by the license the latter is in the strict exercise of his right in insisting that the objectionable occupancy be discontinued. And this may be done by a mandatory injunction: Long v. Regan, 94 Md. 462; Stanford v. Lyon, 37 N. J. Eq. 94; Norwalk Heating, etc., Co. v. Vernam, 75 Conn. 662; Pile v. Pedrick, 167 Pa. 296; Harrington v. McCarthy, 169 Mass. 492. The disclaimer to the strip in question filed by the plaintiff does not put the defendant in the possession or enjoyment of his property, nor secure to him the incidents of ownership to which, both in law and equity, he is entitled.

But as the wall was constructed under a license from the defendant, and its present location is the result of a mistake on the part of the plaintiff, we think it would not be equitable to require its removal from the defendant’s premises and the construction of it wholly on the plaintiff’s land, as requested by the defendant. The ends of justice will be met and full effect given to the intention of the parties to the license by a decree that the wall be so moved or reconstructed that the face of it fronting the plaintiff’s lot shall be along the dividing line between the lots of the plaintiff and the defendant.

The decree of the court is therefore reversed, the cross bill is reinstated, and the record remitted to the court below with direction to enter a decree in accordance with this opinion.

It is further ordered that the costs of this appeal be paid by the appellee.


author: Per Curiam,

text:
    Kesara v. S. & L. Rubber Company, Appellant.

      Negligence — Master and servant — Dangerous machine — Duty to inn struct.

    In an action by an employee against his employer to recover damages for personal injuries, the case is for the jury, and a verdict and judgment will be sustained, where the evidence tends to show that the plaintiff was an ignorant man unacquainted with English; that he was set to work at a machine for rolling rubber; that he was injured while working at the machine by material becoming loose on the roller and making a lashing flap which struck his hand; that the defendant knew of this danger, but had given the plaintiff no warning or instructions in reference to it; and that the danger was one which the plaintiff did not know, and could not discover by the exercise of reasonable attention and care.
    Argued Nov. 17, 1909.
    Appeal, No. 200, Oct. T., 1909, by defendant, from judgment of C. P. Delaware Co., June T., 1908, No. 91, on verdict for plaintiff in case of Nicola Kesara v. The S. & L. Rubber Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict for $900.
    On a motion for judgment non obstante veredicto, Broom-all, J., filed the following opinion:
    This is a suit by the plaintiff against the defendant to recover compensation for injury sustained by reason of the alleged negligence of the defendant. The plaintiff was a workman of the defendant at the time of the injury. The alleged negligence of the defendant consisted of a failure to give the plaintiff adequate instructions, respecting the peril of his work, which led to his injury. He is seemingly an ignorant man of foreign birth, about twenty-five years of age, unacquainted with the English language. He had worked on the machine where he was injured, three or four times a month for five or six months, several days at a time, before the accident.
    The defendant is a manufacturer or reclaimer of rubber. The business of reclaiming rubber is to take old pieces of hard rubber, and subject them to chemical and mechanical treatment, grind and mix them, and roll them into sheets less than one inch in thickness. There is a series of rollers through which the material passes, each of which is designed to effect some result in the operation. The last rolling machine in the series takes the material from the preceding rolling machine, in the form of thin sheets, about thirty yards in length, and about thirty inches wide, and less than half an inch in thickness. The plaintiff was at work at this machine when he was hurt. In the main it consists of two hollow rollers, about three feet long and about one foot in diameter. They are set horizontally, and less than an inch apart, about four feet from the floor. There is a box beneath them to catch the rubber as it passes between the rolls. The rolls revolve inwardly, looking at them from above. The operation at this machine is to take the thinner sheet of the preceding machine and roll, it into a thicker sheet. The operator starts the thinner sheet through the rolls from the top. At first it starts to pass through and drops into the box beneath. Then the operator takes the end which has passed through and inserts it between the rolls, along with the remainder yet passing through, thus doubling it in order to thicken it. Presently, when the two have coalesced and become homogeneous, this doubled piece will cling to the front roll, and sometimes in rare instances to the back roll. It is then cut from the roll as the finished product, and the process goes on to fill the roll again with the finished product. If the clinging process takes place on the back roll, the only difference is that the workman has to go to the back of the machine to cut it off. This process being a doubling of the sheet, it happens sometimes when the sheet next to the roll clings to it, the other layer may not adhere to the inner layer and thus will pass around like a whip lash as a flap. If the material is forming on the front roll this flap is not' dangerous to the workman, because if his hands are above the rolls, the flap striking them drives them away from the rolls; but if the material forms on the back roll this flap coming around towards the workman with some rapidity, if his hands are above the rolls, strikes them and drives them into the rolls. This is the manner of injury which happened to the plaintiff.
    The only questions in the trial of the case were, firstly, whether this was a danger with reference to which the master should have instructed the servant, and secondly, whether in fact the servant had been so instructed by the master. These questions were found by the jury for the plaintiff. The plaintiff lost almost the whole of his right hand. The amount of the verdict indicates that the jury soberly and temperately considered the case.
    This evidently was not an obvious danger. It required two convening contingencies for its occurrence. It was somewhat accidental for the material to form on the back roll, and with less frequency did it happen that the outer sheet would fail to stick to the inner one and make a lashing flap. The plaintiff testified that it had not occurred before in his experience, and yet it appeared from the evidence to be an occurrence which occasionally happens. The plaintiff testified that he had received no instructions whatever as to the dangers of the machine. The evidence of the defendant was to the effect that the plaintiff had been directed to keep his hands from on top of the rolls. The jury were told that they might interpret this to mean, that he should not' put his hands above the rolls, and if they did so, the verdict should be for the defendant. This was probably stronger in favor of the defendant than it was entitled to. The man should have been warned not only as to the danger of putting his hands above the rolls, but also in view of the lashing flap on the back roll, the reason why he should not put his hands above the rolls. If the warning testified to by the defendants’ witnesses was given, he might well have interpreted it to mean, that he should not put his hands in contact with the rolls on top of them. And that indeed required no warning, for that was an obvious danger. This was the very pith of the case, and upon it the plaintiff testified that he had no warning whatever, while the evidence of the defendant did not aim itself directly at the very danger itself. Under this state of the evidence we cannot usurp the function of the jury, and determine that the plaintiff is not to be believed.

      The logic of the verdict being analyzed stands upon this footing:
    1. The plaintiff was a workman of the defendant.
    2. He was an ignorant man, unacquainted with the English language.
    3. He was set to work without instructions respecting the particular danger, which resulted in his injury.
    4. The particular danger which caused his injury, was the material coming over the back roll becoming loose and making a lashing flap, and striking his hand, drove it between the rolls.
    5. This danger is one which either the employer knew or ought to have known by the exercise of reasonable attention, care and diligence.
    6. This danger was one which the workman did not know and would not discover by the exercise of reasonable attention, care and diligence.
    There was evidence in favor of each of the links in the foregoing chain of reasoning; and the jury have forged them by their verdict in favor of the plaintiff.
    The evidence was sufficient to submit to a jury, respecting the three necessary elements which must exist in the class of cases to which this belongs, to wit:
    1. The master must be aware, actually or constructively, of the existence of the peril, with respect to which it is alleged to have been his duty to enlighten the servant.
    2. He must know, actually or constructively, that the servant was excusably ignorant of the danger to which his injury was due, and excusable ignorance must be other than ignorance of those risks which are necessarily incidental to the employment, or which may be open and obvious to a person of his experience and understanding.
    3. The servant must be unaware of the danger and the danger must be such as he would not be aware of, if he had been ordinarily careful in taking notice of his surroundings.
    The same thoughts are expressed in Wagner v. Jayne Chemical Co., 147 Pa. 475, Hendricic, J.: “ It is a well settled rule of law that an employee will be deemed to have assumed all the risks naturally and reasonably incident to his employment, and to have notice of all risks which to a person of his experience and understanding are, or ought to be, open and obvious.
    December 13, 1909:
    “ On the other hand, it is equally well settled that an employer is bound to exercise reasonable precaution against injury to his employees while they are in his service and obeying his orders. Not only must he provide suitable implements and means with which to carry on the business which he sets them to do, but he must warn them of all the dangers to which they will be exposed in the course of their employment except those the employee may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be open and obvious to a person of his experience and understanding, and except also such as the employer cannot be deemed to have foreseen. And the employer will be presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged.”
    The case was submitted to the jury in accordance with the law as expressed in the foregoing recitals, and it follows that entertaining the foregoing views we must refuse the defendant’s motion for judgment non obstante veredicto, which is accordingly done.

      Error assigned was in refusing motion for judgment non obstante veredicto.

      W. Roger Fronefield, for appellant.

      John E. McDonough, for appellee.
   Per Curiam,

It is considered by the majority of the judges who heard this case that the defendant’s request for binding instructions and its motion for judgment non obstante veredicto, were properly refused for the reasons given by the learned trial judge in his opinion refusing the latter motion.

Judgment is affirmed.


text:
    Presbyterian Ministers’ Fund v. Folz, Appellant.

      Ground rent — Failure to pay taxes — Action against owner.

    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, and at a sheriff’s sale under the judgment buys 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. In such a case it is immaterial that the nominal purchaser at the sheriff’s sale was not the owner of the ground rent, if it appears that the purchaser bought the land for the benefit of the owner. The suit may be brought in the name of the owner of the ground rent.
    Argued Oct. 20, 1909.
    Appeal, No. 100, Oct. T., 1909, by-defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 4,723, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Presbyterian Ministers’ Fund v. Leon H. Folz.
    Before Rice, P. J., Porter, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit to recover taxes paid by plaintiff to protect his title.
    Rule for judgment for want of a sufficient affidavit of defense.
    Audenried, J., filed the following opinion:
    The plaintiff in this case caused the sheriff to sell a property, known as No. 1241 Markoe street, in the city of Philadelphia, under execution on a judgment for $75.90 that it had obtained for an installment due July 1, 1908, on account of a yearly ground rent of $90.00 issuing thereout. The property was sold subject to the ground rent charges. It was bought by Jonathan C. Neff, to whom the sheriff subsequently conveyed it. Its price did not suffice to pay more than the costs of the execution. In buying the property Neff acted for the plaintiff, for which he still holds its title. From 1898 to the middle of 1903, the premises, subject to the payment of the yearly ground rent above referred to, were owned by the defendant herein. The city taxes for the years 1899, 1900, 1901, 1902 and 1903, were assessed against it in his name. These were still owing when the sheriff’s sale took place, and, its proceeds not sufficing to pay them, their lien upon the property-continued undisturbed.
    Upon acquiring control of the title of the premises in the manner above described, the plaintiff paid the tax claims for the five years that have been mentioned, and brought this action to recover from the defendant the sum of $205.55 that he thus expended.
    The defendant does not deny the plaintiff’s averments of the foregoing facts. He does not dispute the legal proposition that one, not a mere stranger or volunteer, who, under compulsion, actual, present and potential, pays the debt of another in order to preserve rights or property of his own, being under no legal obligation to make the payment, is entitled to subrogation to the rights and remedies of the creditor against the debtor. He concedes that this principle has been applied in relief of a mortgagee who, having bought in the mortgaged property at the sheriff’s sale in foreclosure proceedings, has ..paid the tax claims which the sale has not discharged; and even in relief of the holder of a ground rent who has bought the property on which his ground rent is charged at the sheriff’s sale under a judgment for arrears thereof, and has been obliged, in order to preserve the property thus acquired, to pay off the undischarged taxes that incumbered it.
    The defenses set up by the affidavit under consideration are, first, that the payment of the taxes assessed against Folz was a purely voluntary act on the part of the plaintiff, since its ground rent has not been extinguished by merger in the fee, as was the case in Frank v. McCrossin, 33 Pa. Superior Ct. 93, and since on that estate in the land the taxes were not a lien whose discharge was necessary to its preservation; and second, that the application of the doctrine of subrogation to the case before the court will not sustain the plaintiff’s demand, since the right of the city of Philadelphia to recover the taxes above mentioned by personal action against the defendant was, at the time of their payment by the plaintiff, barred by the statute of limitations, and since the right of the plaintiff in the matter can rise no higher than that of the city.
    We are of opinion that neither of these defenses is sufficient to prevent judgment in favor of the plaintiff.
    That the defendant’s failure to pay the taxes on the property out of which the plaintiff’s ground rent issued endangered the latter’s rights in the land and made it necessary for their preservation that it should pay what was properly the debt of the former cannot be doubted. Neff is merely the plaintiff’s trustee. The property held by him belongs to the plaintiff as absolutely as it would if its legal title were in the latter. It is difficult to see how the case of one who, as the result of a sheriff’s sale of land for arrears of the ground rent charged upon it, has become the owner of the land as well as of the ground rent charge can be said to differ from that of one who, after a similar sale, holds the land that he has bought thereat clear of the charge of the ground rent that he formerly held upon it, through the merger of the estate that was formerly his in the fee that he acquired by purchase at the sale. The right of the ground rent landlord who, in the course of an effort to collect the arrears of his ground rent, has come to be the owner of the land out of which his ground rent was reserved to pay the taxes assessed against the land and look for reimbursement to the party whose duty it was to pay them, would seem, on the authority of Frank v. McCrossin, 33 Pa. Superior Ct. 93, to be as clear in one case as in the other.
    It is undoubtedly true that in the case now under consideration the taxes paid by the plaintiff were not a lien on its estate in the property as ground rent landlord, and that a sale of the land under a judgment obtained for them would not divest that estate therein; but it by no means follows that the defendant’s failure to pay them did not jeopardize the plaintiff’s rights in the land. Under sec. 2 of the Act of April 19, 1883, P. L. 9, the receiver of taxes of Philadelphia may collect delinquent taxes by distraint either out of the personal property on the premises or out of the personal or real estate of the delinquent owner wherever the same may be found; and by sec. 3 of the same act he is authorized to distrain and levy upon and sell any goods, chattels or personal property found on any premises on which the taxes are delinquent. By the section last cited it is provided that, when the personal property of a tenant has been levied on for taxes, the amount collected from the tenant by the receiver of taxes, “shall be a lawful deduction from the rent due.” Upon that method of collecting back taxes the legislation of this commonwealth imposes no limitation with respect to the time within which it may be resorted to; and it might be pursued even if the statute of limitations was a bar to the right of the city to maintain a personal action against the delinquent taxpayer, since the statute affects only the remedy to which it refers and leaves the obligation or liability untouched. Under the act of assembly to which reference has been made the officials of the city, at any time after the sale of No. 1241 Markoe street by the sheriff, might have distrained and sold the goods on the property for the taxes that the defendant still owed. The tenant whose goods were thus seized would have had the right to pay the tax claims and defalk against the rent that he had to pay. The statute is broad enough to confer this right on a tenant in fee who holds subject to a ground rent as well as on the mere tenant for years; and, in equity, the right of each to subrogation against his landlord stands on the same foundation. Even, however, if this were not so, it is manifest that the danger of a distraint for taxes on the personal property on the land would seriously threaten the rights of the ground rent landlord, as it might easily conflict with the collection of arrears of ground rent by the'talcing of a distress from the same goods.
    It is by no means clear that the right of the city of Philadelphia to cover the taxes assessed against the defendant as owner of the Markoe street property, by a personal action, is barred by the statute of limitations. While it was assumed in several cases by the Supreme Court that tax claims may be barred by the statute, no case has been pointed out in which it was held that the claim for the taxes in suit was actually barred. On the contrary, the case of Philadelphia v. Atlantic & Pacific Telegraph Co., 10 Pa. Dist. Rep. 376, is authority for the proposition that such claims are not affected by the statute. Be this, however, as it may, it is certain that the statute operates only on the particular remedy to which it refers, and not on the obligation of him against whom taxes have been assessed to pay them. Hence, as has been pointed out above, they may be collected at any time by any legal means, resort to which is not barred by specific enactment. Such a method of collection is afforded by the Act of April 19, 1883, P. L. 9. It cannot be argued that the plaintiff on paying the taxes owing by the defendant was subrogated merely to the remedy against him that was left to the city, and is consequently obliged to secure reimbursement through distraint and sale. In Commonwealth v. Mahon, 12 Pa. Superior Ct. 616, it was pointed out by the Superior Court that, “Remedies to enforce personal liabilities for taxes, possessed by public authorities might be -unsuitable and inappropriate to be used by an individual.” A distraint by the plaintiff on the defendant’s personal effects' and their sale in pursuance thereof would be vexatious, and, perhaps, result in hardship or oppression. Rather then relegate the plaintiff to a proceeding of that character the law will sustain an action such as the present upon the implied undertaking of the defendant to repay the moneys laid out to relieve him from his liability and its incidental inconveniences.
    December 13, 1909:
    The rule for judgment is made absolute.

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

      Stanley Folz, for appellant.

      Francis Chapman, with him S. Spencer Chapman, for appellee.
   Per Curiam,

The facts of this case are fully and clearly set forth in the able opinion filed by the learned judge of the common pleas, and we shall not undertake to restate them. It was held in Frank v. McCrossin, 33 Pa. Superior Ct. 93, applying the principle of Hogg v. Longstreth, 97 Pa. 255; Republic B. & L. Assn. v. Webb, 12 Pa. Superior Ct. 545; Theobald v. Sylvester, 27 Pa. Superior Ct. 362, and kindred cases, that 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, and at a sheriffs sale under the judgment buys 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. The facts of the present case are the same, excepting that here the nominal purchaser at the sheriff’s sale was not the owner of the ground rent. This being so, it is argued that the plaintiff was under no compulsion to pay the taxes in order to protect its title or estate as ground owner, and therefore the principle of the cases above cited does not apply. Whether the plaintiff eould have maintained the action, if the purchaser at the sheriff’s sale had been an entire stranger, is a question which need not be determined in this case. It being an admitted fact that the puróhaser bought and holds the land for the benefit of the plaintiff, the payment of the taxes by the latter was as clearly necessary for the protection of its title and estate in the land as if it had been the nominal purchaser at the sheriff’s sale. Nor, when the principle at the foundation of the action is considered, was it necessary that it be brought in the name of the purchaser. He had not paid the taxes, but the plaintiff had. The legal obligation of the defendant was directly to the latter, and no substantial reason has been shown for denying to the latter the right to enforce it by action in its own name. See Com. v. Mahon, 12 Pa. Superior Ct. 616, 626. It was further pointed .out in the opinion of our Brother Porter in that case that the question of the right to maintain the action turns upon the personal liability of the owner, not upon the form of remedy to be used by the taxing authorities to enforce that liability. See also Caldwell v. Moore, 11 Pa. 58, where, though the remedy of the county and township was limited to the tax warrant, yet it was held that Caldwell could in a common-law action recover from the owner who was ultimately liable. So here, the learned judge of the court below in a clear and satisfactory opinion has shown, even if it be conceded that the statute of limitations could have been pleaded to a personal action brought by the city for the taxes in question, the personal obligation of the defendant remained and was enforcible by distress. Upon that subject we refer, for a full discussion of the question, to his opinion. This being so, the principle recognized in all the cases would seem to entitle this plaintiff, having been compelled in order to protect its property to pay the taxes which the defendant ought to have paid and for which he was legally and primarily liable, to maintain a personal action against him. The cases' of Neill v. Lacy, 110 Pa. 294, and Theobald v. Sylvester, 27 Pa. Superior Ct. 362, so far as the latter case relates to the claim for water rent, do not apply. They are based on the fact that there was no personal liability of the owner for the taxes in the former case and the water rent in the latter.

Judgment affirmed.


text:
    Darlington, Appellant, v. Clemson.

      Equity — Equity pleading — Demurrer — Corporation — Stockholders— Contribution — Amendment.
    1. A bill in equity filed by a stockholder of a corporation against other stockholders to compel them to contribute their respective proportionate shares of a judgment recovered against the plaintiff and paid by him for a debt of the company, is defective, if it does not show the number of shares held by each of the parties, and contains no prayer for discovery.
    2. Such a bill is fatally defective which does not aver in clear terms that the judgment obtained against the plaintiff was for the indebtedness of the corporation. Such an averment cannot be supplied by inference.
    3. Where a bill clearly demurrable was dismissed without the plaintiff making any application to the court below for leave to amend as provided by equity rule XXXV, he cannot complain in the appellate court of the action of the lower court in sustaining the demurrer without giving him an opportunity to amend his bill.
    Argued Nov. 16, 1909.
    December 13, 1909:
    Appeal, No. 63, Oct. T., 1909, by plaintiff, from decree of C. P. Chester Co., No. 491, in Equity, sustaining demurrer to bill in case of Hoopes Darlington v. Hannah G. Clemson.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for contribution. Before Hemphill, P. J.
    The court sustained the demurrer.

      Error assigned was in sustaining the demurrer.

      W. S. Harris, for appellant.

      Alfred P. Reid, for appellee.
   Per Curiam,

The prayers of the plaintiff’s bill were, (a) for a decree requiring the defendants to contribute and pay to the plaintiff their respective proportionate shares of the amount of a certain judgment obtained against him by the First National Bank of Pittsburg, Kansas, in accordance with the number of shares of the capital stock of the Neosho Valley Investment Company, a Kansas corporation, owned or held by each defendant; (b) for such other and further equitable relief as he was entitled to. There was no prayer for discovery. In order to a final decree, that would give the plaintiff the entire relief prayed and end the whole matter, it was essential that he show the number of shares of stock held by each of the parties called upon to contribute. In strictness he ought to have set this forth in his bill, or to have averred his inability to do so and prayed for discovery. In this particular the bill was defective.

But a more serious and substantial defect was that the bill did not distinctly aver all the facts essential to sustain the plaintiff’s claim for contribution. It was not sufficient to aver that he and the defendants were owners and holders of shares of the capital stock of the Neosho Valley Investment Company, and that the defendants were liable with him, under the laws of Kansas, for the indebtedness of that corporation. The equity of contribution arises when one of several parties, who are liable to a common debt, discharges the same for the benefit of all. Hence, it was essential that the plaintiff go further and aver that the judgment obtained against him by the First National Bank of Pittsburg, Kansas, which he paid, was for a debt of the Neosho Valley Investment Company. The averment in the stating part of the bill, that the bank, having first procured a judgment against the investment company, then brought suit against the plaintiff in the bill in the common pleas of Chester county “making certain claims against your orator which is fully set out in the plaintiff’s statement filed in said action,” is manifestly insufficient to meet the above requirement. That the judgment obtained against the plaintiff was for the indebtedness of the investment company was left wholly to surmise. Nor was the defect in this material particular of the plaintiff’s case cured by the vague, uncertain and ambiguous averment of the fourth paragraph of the bill. While the doctrine of a rigid and technical' construction of bills in equity no' longer prevails, it is clear, both upon principle and authority, that every averment necessary to entitle the plaintiff to the relief sought must be contained in the bill, and may not be supplied by inference, and that it should be free from ambiguity and uncertainty. See Thompson’s App., 126 Pa. 367; Story’s Eq. sec. 241. It is urged that where a bill makes a case for equitable relief, a general demurrer will not be sustained. This principle will not sustain the bill under consideration because, as we have seen, it does not distinctly and with certainty aver one of the prime essentials to the relief prayed for. Nor, as will be seen presently, are those cases applicable in which it has been held that where a bill in equity shows a substantial ground for relief and there has been a full hearing on the merits, an amendment as to form will be permitted even in the appellate court. But it is urged that the court erred in sustaining the demurrer without giving the plaintiff an opportunity to amend. Rule 35 of rules in equity reads as follows: “If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.” Here the plaintiff had notice, from the assignment of reasons in support of the demurrer, of the defects in the bill above referred to. He made no motion to amend either before or after argument on the demurrer, or even after the final order had been made. He is not in position to question the discretion of the court, since he did not invoke the exercise of that discretion as the equity rules provide.

The decree is affirmed at the costs of the appellant.


text:
    Snedaker, Appellant, v. Torpey.

      Contract — Performance — Substantial performance — Evidence — Case for jury.

    Where a party has acted honestly, with intent to fulfill his contract, and has performed it substantially but has failed in some comparatively slight particulars, the other party cannot hold and enjoy the fruits of his labor without paying a fair compensation according to the contract, receiving credit for whatever loss or damage he suffered. Whether the party acted in good faith, and whether the departures from the contract were material are generally questions for the jury.
    Argued Oct. 6, 1909.
    Appeal, No. 7, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 2,234, M. L. D., for defendant non obstante veredicto in case of Frank C. Snedaker et al., Copartners, trading as Frank C. Snedaker & Company, v. John J. Torpey, Owner or Reputed Owner.
    Before Rice, P. J., Portee, Hcnderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      December 13, 1909:
    Assumpsit to recover balance alleged to be due on a building contract. Before Brégy, P. J..
    The facts are stated in the opinion of the- Superior Court.
    At the trial the jury returned a verdict for $250 in favor of the plaintiffs. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Charles H. Sayre, with him Frank G. Sayre, for appellants.
    The ease was for the jury: Glacius v. Black, 50 N. Y. 145; Preston v. Finney, 2 W. & S. 53; Snodgrass v. Gavit, 28 Pa. 221; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Pepper v. Phila., 114 Pa. 96; Monocacy Bridge Co. v. American Iron Bridge Co., 83 Pa, 517; Cosgrove v. Cummings, 190 Pa. 525; Heckmann v. Pinkney, 81 N. Y. 211; Gallagher v. Sharpless, 134 Pa. 134; Meincke v. Falk, 61 Wis. 623 (21 N. W. Repr. 785); Albert v. Frick, 1 Penny. 132; Johnson v. DePeyster, 50 N. Y. 666; Shires v. O’Connor, 4 Pa. Superior Ct. 465; Pallman v. Smith, 135 Pa. 188; Holmes v. Chartiers Oil Co., 138 Pa. 546; Truesdale v. Watts, 12 Pa. 73.

      Charles J. Sharkey, with him F. Pierce Buckley, for appellee.
    Contractors who after taking a contract proceed to “skin” the job and make changes for their own mercenary purposes have never been allowed to successfully invoke the equitable doctrine of substantial performance: Gibbs v. Girardville School Dist., 195 Pa. 396; D., L. & W. R. R. Co. v. Monroe County Water Power, etc., Co., 221 Pa. 387; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Caughey v. Parker, 26 Pa. Superior Ct. 289; Hoover v. Beach Creek Coal, etc., Co., 29 Pa. Superior Ct. 615.
   Opinion by

Henderson, J.,

The defendant resisted the claim of the plaintiffs on the ground that the work and material were not in accordance with the plans and specifications according to which the work was undertaken. The plaintiffs denied a departure from the terms of the contract as to all of the particulars alleged by the defendant except three, and the jury found for the plaintiff on the disputed questions. The deviations admitted by the plaintiffs were that spruce instead of yellow pine horses were used to support the stairs; that the rail was fastened to the newel post with nails instead of bolts and that flooring seven-eighths inches in thickness was used on the landings on the stairway instead of material one and one-eighth inches thick. As to the first of these the plaintiffs allege that spruce was a better material for the purpose intended than yellow pine, and that they used it for that reason. They also showed that the material was covered up in the construction of the stairway and that the defendant was in no way prejudiced by the change. Plaintiffs also claimed that the rail was nailed rather than bolted because it was impracticable to use bolts on account of the way in which the rail met the newel post. The thinner flooring on the stair platforms was used as the plaintiffs alleged because the flooring of the building was of seven-eighths thickness and the stair platforms were made the same to correspond with the remainder of the house. The only difference in cost as claimed by the plaintiff was about 11.50. The contention of the plaintiffs was that these variations were honestly made, that they were unimportant and slight and that there was in any view of the case substantial performance of the contract. The court submitted this question to the jury and a verdict in favor of the plaintiffs was rendered.

The question before us is whether the evidence presents such a case as required the court to enter judgment for the defendant non obstante veredicto after a finding by the jury that the plaintiffs acted in good faith and that the variations in the contract were not important. The evidence shows that the defendant was present nearly every day during the progress of the work; that he was himself a practical builder, and the testimony introduced by the plaintiffs is to the effect that at the completion of the work the defendant was satisfied therewith. It is not pretended that the work was not so far perfected as to answer the purpose intended nor that the admitted variations from the specifications affected the usefulness of the stairway to any considerable degree.

The rule as to strict performance has been relaxed in Pennsylvania, and the doctrine of our cases is and for a long time has been that departures from a contract in the substitution of one thing for another, if done with proper motives and in unimportant matters will not preclude the plaintiffs from recovering for substantial performance. Where such performance has been honestly rendered by one who has furnished material and labor which are used by the other party to the contract, he will not be held to a technical performance and denied any compensation, but will be allowed to recover the amount of the contract after deducting therefrom a sufficient sum to fully compensate the defendant for the loss he sustained by the failure of the plaintiffs to give strict performance: Danville Bridge Co. v. Pomroy, 15 Pa. 151; Albert v. Frick, 1 Penny. 132; Gallagher v. Sharpless, 134 Pa. 134; Holmes v. Oil Co., 138 Pa. 546; Filbert v. Philadelphia., 181 Pa. 530.

The principle is thus stated in Pepper v. Philadelphia, 114 Pa. 96: “Where a party has acted honestly, with intent to fulfill his contract, and has performed it substantially but has failed in some comparatively slight particulars, the other party cannot hold and enjoy the fruits of his labor without paying a fair compensation according to the contract, receiving credit for whatever loss or damage he suffered.”

It is not intended that the indulgence thus shown a contractor is to be applied in cases of fraud or gross negligence, or when one unjustifiably abandons the undertaking before its completion, but only where an intention is disclosed to complete the work in good faith. Whether the party acted in good faith, and whether the departures from the contract were material are generally questions for the jury: Truesdale v. Watts, 12 Pa. 73; Pallman v. Smith, 135 Pa. 188; Holmes v. Chartiers Oil Co., 138 Pa. 546; Cosgrove v. Cummings, 190 Pa. 525; Albert v. Frick, 1 Penny. 132; Gallagher v. Sharpless, 134 Pa. 134.

The learned trial judge charged in substance that if the plaintiffs attempted to slight the work, or if they deviated from the plans and specifications in an important matter, they could not recover, but if their work was substantially completed in good faith and their omission related only to some unimportant matters then they were entitled to a verdict for the contract price subject to a deduction because of the variations. This was a correct statement of the law applicable to the evidence introduced, and the jury having returned a verdict for the plaintiffs, with a deduction to the defendant on account of the changes, no sufficient reason has been shown why judgment should be entered for the defendant non obstante. The authorities cited in support of the position of the appellee are not in conflict with the appellant’s contention.

Gillespie Tool Co. v. Wilson, 123 Pa. 19, is a case of a test well for oil and gas in undeveloped territory. A considerable part of the hole near the bottom was only four or four and one-fourth inches in diameter instead of five and five-eighths inches. It was obvious, as well as shown by the evidence, that a four and one-fourth inch well would not discharge as much gas as one five and five-eighths inches in diameter, nor was there any attempt to excuse or justify the variance from the terms of the agreement.

In Caughey v. Parker, 26 Pa. Superior Ct. 289, there was a total failure to perform. True, a well was drilled into the fourth sand but the tools were lost in the well and the contractor was unable to remove them, by reason of which the well was lost to the owners.

In Hoover v. Beach Creek Coal, etc., Co., 29 Pa. Superior Ct. 615, a gross fraud in a most material matter was perpetrated in the execution of the contract by the agent of the plaintiff.

The quotation in the appellee’s paper-book from Gibbs v. School District, 195 Pa. 396, is a recital in the opinion of the Supreme Court of the reasons given by the court below for giving binding instructions for the defendant, but that case was reversed and was decided on a proposition not involved in this case.

We are of the opinion that on the evidence exhibited at the trial the case was for the jury on the instructions given by the trial judge. As, however, the motion for a new trial does not appear to have been disposed of by the court the record must go back to permit the trial court to dispose of that subject.

The judgment is reversed and the record remitted to the court below to dispose of the motion for a new trial.