text:
    Rogers, Appellant, v. Toland.

      Corporations — Stock—Transfer of stock — Liability for assessments.

    Where a person subscribes for the stock of a New Jersey corporation, and pays a portion of his subscription and receives a stock certificate in his own name, and subsequently signs the blank transfer on the back of the certificate, and sells and delivers the certificate to a firm of brokers, who in turn sell and turn over the certificate to another party in the same form as they received it, and long afterwards the company levies an assessment, and the original owner from whose name.the stock has not been transferred on the books of the company is compelled to pay the assessment under the laws of New Jersey, he cannot recover the amount thereof from the brokers to whom he sold and delivered the certificate. His only recourse is to the owner of the stock at the time the assessment was levied.
    Argued Dec. 15, 1909.
    Appeal, No. 226, Oct. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1908, No. 3,477, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frank G. Rogers v. Edward D. Toland et al., trading as Toland Brothers & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover the amount of a stock subscription which the plaintiff has been compelled to pay.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      Walter George Smith, with him Wm. Rudolph Smith, for appellant.
    The defense in the present case is that by reason of the fact that the ownership of. the certificate passed from the defendants to Kurtz & Co. on the day after it was purchased from the plaintiff, thereby their responsibility ceased.' This, apparently, was the position first adopted in England: Humble v. Langston, 7 M. & W. 517, but it has long since been changed: Grissell v. Bristowe, L. R. 3 C. P. 112; Kellock v. Enthoven, L. R. 9 Q. B. 241.
    The obligation of the parties became fixed at the time of the transaction and could not be shifted by the defendant unless it had transferred the shares on the .company’s books, not even by notice, — which was never given: Lichten v. Verner, 56 Legal Int. 180.

      July 20, 1910:

      Paxson Deeter, with him Francis V. Lloyd and J. Levering Jones, for appellee.
    The American authorities sustain the judgment of the court below: Brinkley v. Hambleton, 67 Md. 169 (8 Atl. Repr. 904).
    Lichten v. Verner, 56 Legal Int. 180, cited by the plaintiff, does not sustain his contention.
    He who takes the profit should bear the losses.
    The United States circuit court of appeals of the third circuit, in one of the cases arising out of the present receivership, American Alkali Co. v. Kurtz, 138 Fed. Repr. 392, clearly indicated that only two persons are liable to the company for assessments — the registered owner and the real owner.
    The case is similar to the assignment of a lease or the sale of a property “under and subject” to a mortgage: Mason v. Smith, 131 Mass. 510; Walker v. Physick, 5 Pa. 193; Academy of Music v. Smith, 54 Pa. 130; Shoenberger v. Hay, 40 Pa. 132.
    The English cases sustain the opinion of the court below: Sayles v. Blane, 14 A. & E. Enc. of Law (N. S.), 205; Walker v. Bartlett, 18 Com. Bench, 845; Grissell v. Bristowe, L. R. 3 C. P. 112.
   Opinion by

Head, J.,

Prior to June 5, 1899, the plaintiff was the registered owner of 100 shares of the capital stock of the American Alkali Company, a corporation of the state of New Jersey. The par value of each share was $50.00. The plaintiff had paid in ten per cent of his subscription and received a stock certificate in his own name evidencing his ownership pro tanto. It had printed on its back a blank form, by the use of which the owner could readily transfer his-shares to another person, and, at his option, provide for the substitution of that person in his stead as the registered owner of the stock.

On June 5, 1899, the plaintiff’s brokers negotiated a sale of these shares to the defendant firm, also brokers, for a cash consideration agreed on and then paid, and then and there turned over the certificate. The plaintiff signed the form on the back of the certificate in blank. That is to say, the form printed was not so filled out as to make the assignment and transfer special to that particular person, but general, with a blank for the name of the transferee so that it could lawfully be filled out any time by inserting therein the name of the then owner of the shares. The transaction as it was executed by the parties in no way differed from the thousands of such sales made every day on the stock exchanges of the country.

On the following day, June 6, 1899, the defendants in turn sold these shares to W. W. Kurtz & Co., turning over to them the certificate just as it had been received from the plaintiff. The defendants at no time thereafter had any interest whatever in the said shares or certificate, and the record does not disclose what subsequent transfers, if any, were made nor who was the real owner of the stock when the assessment now to be mentioned was levied or paid.

In 1901 the directors of the corporation made a call of $10.00 per share, payable in installments, but the plaintiff paid nothing on account thereof. Several years later the company was regularly determined to be insolvent, and its duly appointed receiver, in pursuance of a decree of court, levied an assessment of $2.50 per share to pay its debts. The plaintiff gave notice to the defendants of this assessment and of the suit brought by the receiver to enforce its payment. After litigation it was judicially determined that the plaintiff, as between himself and the company, was liable, and accordingly in January, 1909, he paid the assessment and begun this action to recover from these defendants the money he was thus compelled to pay.

It is not contended that the defendants ever entered into any express covenant, written or oral, in which they obliged themselves to pay anything more for or on account of the stock purchased than the cash price they actually paid at the time of the sale. The plaintiff’s claim to recover rests on the propositions that whilst he and the defendants expressly agreed upon the consideration the former would accept and the latter pay for the transfer of the stock, the law of the land wrote into the transaction an undertaking on the part of the buyer to relieve the seller of any obligation to the company the latter had voluntarily assumed by an original subscription to its stock, or by his choice to permit his name to stand on the records as the registered owner of stock he had in fact sold. And further, that this implied contract of indemnity was to endure not only while the buyer retained his ownership and right to receive accruing profits, but during the years after he had, in turn, become a seller and parted with the stock and every right and interest incident to its ownership. If this ,be sound, the implied consideration of the purchase and sale was, potentially at least, many times that expressed.

The real question involved is neither the existence nor the nature of the obligation of the defendants to indemnify the plaintiff against assessments levied while the former owned the stock; but whether such obligation has its root in the fact of ownership and dads when ownership ceases. The question has been the subject of discussion by text-writers and courts outside of Pennsylvania and the conclusions reached have not been harmonious. We must then determine which of the two diverging lines of reasoning appeals to us as the more forcible and sound, the better calculated to lead to a judgment that will exhibit no repugnance to precedents established in cases resembling, in principle at least, the one now before us.

It is but to repeat a legal aphorism to say that it is primarily the object of our laws and of the courts who administer them, not to make contracts for individuals who are sui juris, but to interpret and enforce those which such individuals make for themselves. When, however, the statute of a state, its declared public policy, the long-continued custom of men engaged in .particular lines of trade or business, or the universally accepted dictates of natural justice and equity have declared that the performance of certain duties or the discharge of certain obligations are but the necessary incidents of prescribed relations, into which men may contractually enter, the voluntary creation of the relation is the like assumption of its incidental obligations; the latter need not be expressed in words.

When a plaintiff then seeks to enforce the performance of a covenant not expressed in his contract, he assumes the burden of showing that such covenant was truly incidental to the avowed object of the contract and of pointing to some recognized basis, of the character indicated, on which the implied obligation rests. And especially should this be true where, as in this case, the results flowing from the alleged incidental or implied covenant far exceed in magnitude and importance the principal ones about which the parties expressly contracted.

The streams of commerce naturally flow along the lines of least resistance. Among the things that men regard as valuable, and therefore the natural subjects of commerce, those are most favored which will most readily pass from hand to hand. And there is a constant tendency to strip these favored subjects of every nonessential characteristic likely to hamper or impede the desired quick and easy transmission of property from seller to buyer. The development of our law of negotiable instruments is an evidence of this tendency. “A cornier without luggage” will naturally outstrip its weighted rival. To the same tendency may be ascribed, in large part, the marked inclination of accumulated capital to invest in the class of property designated corporate securities.

This reference to general principles seems to be made necessary by the fact that although we have been aided by the briefs of able counsel, their industry has discovered no precedent in Pennsylvania which distinctly rules the question before us. But men have dealt with property of other kinds under conditions closely resembling those existing here. We see nothing so peculiar about the quality of the property which was the subject of this contract, as to prevent the application of the well-settled principles that have controlled the transactions of men when buying and selling other kinds of property. In early days land and the various estates that may be acquired and enjoyed in it were perhaps most frequently the subjects of contracts. For instance, estates held by lease were freely aliened. The right of the assignee of a lessee to enjoy the products of the demised land, his obligation to pay the rent reserved, and the period during which both right and obligation were to coexist,' have been clearly defined by our courts. So the principles controlling the - sale and purchase of land subject to ground rents, mortgages, etc., have been frequently announced.

In Walker v. Physick, 5 Pa. 193, one Latimer conveyed to Walker certain land in fee simple, reserving a certain yearly ground rent which Walker covenanted to pay. Later Walker conveyed the land to Physick in a deed reciting the former conveyance, which reserved the ground rent, and containing the following habendum, “under and subject, nevertheless, to the payment of the aforesaid yearly rent-charge or sum of, etc., so as the same shall hereafter accrue and grow due unto the said Latimer, his heirs and assigns, forever.” Physick in turn aliened to Wharton, and after this conveyance the ground rent became in arrears. Latimer recovered judgment against Walker, his immediate vendee and covenantor, for this rent. The latter then brought suit against Physick, his vendee, on a theory which we can in nowise distinguish from that on which the present plaintiff rests his right to recover. In determining that Physick, the vendee of Walker, was not liable to reimburse the latter for money he had been compelled to pay in discharge of the arrears of ground rent accruing after Physick himself had conveyed, Gibson, chief justice, said: “Now, granting that there was a covenant here, or else a parol contract arising from the acceptance of the deed, what was the scope and end of it? For it can have that extent and no more. Certainly not to bind the grantee of the freehold forever. No man in his senses would take an estate as a gift which would entail on him a responsibility so endless. The policy of our laws has been to unfetter the transmissibility of property; but, by the interpretation claimed, an inheritance burdened with a ground rent would be rendered nearly, if not altogether, worthless. ... If the original ground tenant might sue his immediate successor for negligence in the payment of arrears by his assignee, the immediate successor could, in turn, sue his assignee for the default of him who had subsequently become the tenant of the freehold; and thus the matter might go on, producing an endless chain of litigation, lengthened at every change of ownership. It is unnecessary to depict the vexation and expense of such a state of concatenated responsibility. If the costs of each recovery, with interest, were successively added to the next cause of action, the result could scarcely be calculated.”

This language could be as truly uttered of the situation now actually before us as of that pictured by the eminent judge from whose opinion we have quoted. The principle thus declared has been, ever since that case, applied to every form of purchase of land subject to the payment of mortgages, taxes or other incumbrances, and it has been steadily held that although each succeeding tenant was liable for the discharge of the rent, taxes, etc., accruing during his ownership, that liability was rooted in the fact of ownership and ceased with it. It is wholly unnecessary that we .should here attempt to cite the many cases in which this doctrine has been applied. None of the eminent counsel, whose briefs in this case are before us, has pointed out any satisfactory reason why the law should place the purchaser of stock in a different situation from the purchaser of land when the like circumstances surround both. Every argument that has been advanced, in support of the doctrine that the plaintiff here may recover from the defendants the amount of the assessment, which was not levied until long after the defendants had parted with their ownership of the stock, could have been as forcibly presented in favor of the right of Latimer to recover in the case last cited.

In recent years the rights of parties interested in what are commonly called gas and oil leases have been frequently settled. The estate of the original lessee in such cases has frequently passed through many different hands, and it has been held that each succeeding assignee of the lease was liable for the discharge of its burdens only during the period of his ownership. The original lessee, by virtue of his contract, is answerable to the lessor during the entire contract period; but when he in turn seeks to recoup moneys he has been compelled to pay, he can look to no one but the real owner of the leased estate upon whom primarily rested the obligation to discharge the covenants of the lease.

Whilst the case of West Philadelphia Canal Co. v. Innes, 3 Whart. 198, is not precisely similar in its facts to the one before us, the alleged liability of the transferee of certain stock, for installments of the subscription price, called after he in turn had parted with it, certainly rested' on as strong grounds as any that can be urged in support of the liability of the defendants in the present case. We think, therefore, we may with propriety quote the following language from the opinion of Kennedy, J., in that case: “As each share of the stock, however, whether fully paid or not, is made transferable by the act under which the company was incorporated at the pleasure of the stockholder ‘subject to all payments due or to become due thereon;’ and the assignee thereof is made expressly hable by the act ‘to be sued for all balances and penalties due on such share as the original subscriber would have been,’ it is perfectly clear that there is no ground for holding such assignee liable for payments falling due after he has parted with the stock; for, having parted with the stock, he is no longer a stockholder, and both the letter and spirit of the act show that it is because he is the holder of the stock that he is made hable to be sued for arrearages due on it; and that as soon as he ceases to be the owner or ■holder of the stock his liability for all payments falling due subsequently thereto ceases also.”

We do not regard either Baily v. Schroyer, 1 Sadler, 128, nor Trevor v. Perkins, 5 Whart. 244, as authority for the proposition here contended for by the appellant. In the former, the case turned on a disputed question of fact, Schroyer, the assignor of the stock, “alleging that it was a part of the agreement between the two for the sale of the stock that Baily should take Schroyer’s place in the bank and bear the losses, stand in Schroyer’s shoes and relieve him from all liability and responsibility. . . . Baily denied any such agreement.” The jury found in favor of Schroyer on all of the points, and therefore the important question now before us was not involved in that case. In the other case cited, Trevor, the assignor of the stock, at the time of the sale executed and delivered to Perkins, his assignee, a special power of attorney authorizing the transfer and assignment to Perkins, by name, of all the shares then standing on the books of the company in the name of the assignor, “subject to the payment of the remaining installments by the said Thomas J. Perkins, or his assigns, as the same may be called in,” etc. This was accepted and retained by Perkins. There was also testimony by a witness to the transaction that the parties had made some arrangement, the details of which he could not give, with reference to the unpaid installments. The Supreme Court, after considering the effect to be given in an indenture of assignment of a lease by a lessee, to the words “subject to the rent reserved in the lease,” and citing and examining certain English cases, said: “However that may be in a court of law, in formal conveyances in which the parties have selected certain terms, and omitted others, from which and from the subject-matter it is inferred that there was no agreement intended, it does not apply to those cases where there is a contract, whether verbal or written, amounting to an agreement to indemnify, .... and if there was in this case evidence to satisfy a jury that there was such a contract or such agreement was to be inferred from the transaction, the plaintiff is entitled to recover.” It was for the reason indicated in the language we have quoted that the judgment of the court below was reversed and the case sent back for another trial.

In Lichten v. Verner, 8 Pa. Dist. Rep. 218, a careful and able opinion was delivered by the learned trial judge (Audenried, J.), but the case did not present the question now before us. Lichten subscribed for shares of stock, paid a portion of the subscription price, and received a certificate. The stock was sold to Yerner and the certificate, indorsed in blank, turned over to him. In fact he bought, not for himself but for an undisclosed principal. The stock was not transferred on the books of the company and Lichten, having been compelled to pay a call, sued Verner for reimbursement. The record shows no subsequent assignment of the stock. It remained in the ownership of the assignee of the subscriber at the time of the call. His liability to respond either to the company or the subscriber, under these circumstances, no one denies. With the liability of an agent who buys for an undisclosed principal we have no concern. The questions there decided are, therefore, clearly outside the field of our inquiry.

We do not feel called upon to enter into an analysis of the English cases on this question, to determine whether or not the courts of that country have changed front, and now accept the conclusion urged on us by the appellant. It is quite certain that a long line of the older cases declared the doctrine which seems to- us supported by the better reasoning and sounder policy. How far the opinion of the court in Kellock v. Enthoven, L. R. 9 Q. B. 241, is controlled by the facts of that case and the English statute applicable thereto we shall not attempt to declare. We may remark, however, that, under the English statute, both assignor and assignee were liable to the company. It chose to collect from the former, and the question involved was whether, under the circumstances, he could recover from his assignee. Here the plaintiff seeks to make respond one who, neither at common law nor under any statute, was ever liable to the company. .Whilst it cannot be denied that in some of the cases cited, from, foreign jurisdictions, there are expressions in the opinions that would support the contention here advanced by the appellant, no one of them can fairly be said to be “on all fours” with the case before us. Even if we recognized their authority, therefore, the exact question we have to answer would still remain an open one.

These English cases are reviewed and analyzed in an opinion by Alvey, C. J., speaking for the supreme court of Maryland, in Brinkley v. Hambleton, 67 Md. 169 (8 Atl. Repr.904). The case there arose under a statute of the state of Virginia. After discussing the rights and obligations of the parties under the statute, the chief justice proceeds to consider these matters in their more general aspect in the following language: “Now, it is very true that, by the statute law of Virginia, each and every assignor and assignee remains liable to the company for the calls that may be made upon the stock, until the full par value be paid. But, as between the assignor and assignee of the shares, there is a primary and a secondary obligation. The primary obligation to pay calls, by the principles of the common law, rests, as we have said, upon the actual owner and holder of the stock during the time of his ownership; and any previous assignor, whom the company might require to pay such calls, would pay by force of his statutory obligation, and because of the failure of the holder of the stock to perform his duty or obligation assumed upon the transfer of the stock to him, and not because of any failure of performance of duty or obligation, either express or implied, by those who had held the stock before the last transfer. Any payment, therefore, of calls by any previous holder of the stock, must, in the contemplation of the law, be made for the party whose primary duty and obligation it was to make such payments, — not for the special benefit of the immediate transferee of the party who has been required to pay, by force of the statute, calls made upon the stock after his transferee has become an assignor of the stock to another party. In other words, there is no implied promise or obligation on the part of an assignee of stock to pay calls made subsequent to his transfer of the shares for the relief of a prior assignor, though the latter may have been required to pay such calls to the company.” The common-law principle, that only the owner of the'stock can be made to respond to a call for the unpaid subscription price, is not questioned, and the reasoning therefrom, indicated in the language quoted, seems to us to be logical and sound.

Let us turn then to the situation of the parties at the time of the transaction in suit. The plaintiff, as we have said,, was the registered owner of the shares. They were freely alienable. When he came to sell them he could have insisted, if he chose, that his vendee must take his place as registered owner. He had within-his own. control the means to effectuate that intention if he entertained it. Or he might sell his shares and turn over the evidence of ownership by a blank indorsement so that his vendee could in turn readily dispose of them. . This he elected to do. It is a matter of common observation in the commercial world that, other things being equal, a security in such form that it may pass by delivery, has a higher market value than its fellow so designed that each transfer, at the expenditure of some time and money, must be completed on the records of the corporation issuing it. The daily market quotations of the common and registered bonds of the United States illustrate this. Whether the plaintiff actually got or believed he could get a higher price by indorsing his certificate in blank we can only surmise.

The purchase price he demanded for his stock was but $250, and this the purchaser paid. It would seem to us to be unreasonable to hold that, as an incident to this transaction, the purchaser was bound to assume a possible responsibility that might require him to pay the further sum of $4,500. We may grant the soundness of the proposition that where one takes over property, the ownership of which may bring with it profit or loss, the right to receive the profits creates the correlative liability to pay losses, but both right and obligation, in this view of the case, are coextensive. As long as the, defendants were the real owners of the stock and entitled to receive any dividends upon it, it would be inequitable to say that they were not liable for assessments made necessary during their ownership.. But years before the assessment in this case was made the defendants, in the exercise of their right, had sold the stock, and the right to receive its profits, with the correlative obligation to discharge any assessments, had passed on in the channel of commerce into which this certificate was launched by the blank indorsement of the plaintiff.

It is agreed that after the defendants parted with their stock they were under no obligation to the company which the latter could enforce. The payment, therefore, of the assessment by the plaintiff was in no way in relief of these defendants, nor was it for the improvement of their property. The contract of indemnity sought-to be fastened upon them was in no way a necessary incident of the main purpose of the transaction which was to transfer the ownership of the shares from the plaintiff to the defendants. The former, either because he was the original subscriber, or because he permitted his name to remain on the books of the company as registered owner, incurred a liability with which he was not obliged to incumber his stock. He may have chosen to take the risk of his possible liability becoming an actuality, and may have preferred to sell his stock for the best price he could get without regard to the future. In a word, the transfer of this possible liability was no necessary part of the sale of his stock unless he chose to make it so. So far as the record shows, he did not so elect, and we are unable to find any satisfactory ground upon which to predicate the conclusion that every man who purchases a share of stock impliedly agrees with his vendor, not only that he will discharge the burdens imposed upon that stock while he owns it, but all other burdens that may thereafter come, owing to the default or negligence of those who, years afterwards, may succeed him in that ownership.

After the most careful consideration that we have been able to give to every aspect of the question involved, realizing as we do its great importance, we are impelled to the conclusion that the learned court below was right in holding the affidavit of defense sufficient to prevent judgment.

Appeal dismissed at the costs of the appellant, but without prejudice, etc.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Hoober v. New Holland Water Company, Appellant.

      Waters — Injury to riparian owner — Damages—Evidence.
    1. Where it is proved that damage has resulted from an injurious trespass such as to a lower riparian owner from the taking of water, and the only uncertainty is as to the exact amount thereof, such uncertainty is not ordinarily ground for refusing to allow any damage at all, if the evidence furnish a basis from which a reasonable calculation can be made.
    2. A permanent injury will not be presumed, and where one seeks to recover damages on that theory, he must aver and prove that his property is permanently injured, or at least that the condition complained of is reasonably certain to be permanent.
    3. The loss of power to a mill resulting from the subtraction of water from a creek on which the mill is situated, is not a permanent injury, and the measure of damages for the injury is the cost of restoring the property to its former condition. In such a case the person causing the injury will not be permitted to show the cost of a different kind of power, such as that produced by a gasoline engine or electric motor, as a method bf determining his liability. The person injured is under no obligation to install another kind of power, but he may abide by the conditions resulting from the loss of the water, and demand that he be compensated to the extent of his loss.

      Argued Nov. 11, 1909.
    Appeal, No. 120, Oct. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1906, No. 7, on verdict for plaintiff in case of A. H. Hoober v. New Holland Water Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a mill property by the diversion of water. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court refused under objection and exception to permit the defendant to show what it would have cost to supply by a gasoline engine or an electric motor, the power lost by the defendant’s taking of water from the spring on his property.
    The court charged in part as follows:
    It will, from the case as presented, be a somewhat difficult task for you to arrive at a conclusion that will be just and fair between these parties. That end, however, you must strive to reach. It is not contended that this mill ran every day or every hour of the day during the year, with the full head of water, or that it ever did before the New Holland Water Company constructed its plant. At times, the stream may have been full and the mill had plenty of water without regard to what was taken by the defendant company; and at other times, the water was doubtless low, owing to dry weather, and the same head at the mill could not be secured. Where a stream is so large that the diversion of part of it does not interfere at all with the use that a man is making of the water as it passes through him, in such a case, if one above on the stream takes out water to any extent, but there is still left enough for his neighbor, that neighbor is not harmed. And so here, for all times when the water of this stream was sufficient for the purpose to which Mr. Hoober put it, even if the New Holland Water Company appropriated a part of the water above, he suffered no damage by reason of that appropriation. [But there may have been times when the water was at such a stage that the appropriation by the water company lessened his power.] [3] Mr. Hoober, having no property in the water, was not entitled to the value of it; but he was entitled to its use; and as he was deprived of that use by the defendant in the running of his mill he is entitled to be compensated. [In other words, whatever he has lost by reason of the diminution of the power and his ability thereby to run his mill and make flour as it was accustomed to be run before the appropriation of the water of the stream by the New Holland Water Company, that damage, figured out by you in dollars and cents, is the proper compensation to him for his loss.] [4]
    Verdict for plaintiff for $940.75, upon which judgment was entered for $500, all above that sum having been remitted. Defendant appealed.

      Errors assigned were (1, 2) ruling on evidence; (3, 4) above instructions, quoting them.

      John A. Coyle, of Coyle & Keller, with him A. W. Snader, for appellant.-
    We respectfully submit that where a plaintiff is seeking to recover damages for a loss of power and is endeavoring to compute the damage which he claims to have sustained on the basis of the effect which he alleges the abstraction of such horse power had upon the output of his mill, it is entirely competent in a suit of this character to show that the consequences of such abstraction could have been obviated at much less expense and the lost horse power supplied by some auxiliary means, such as gasoline, steam, etc.: Irving v. Media Boro., 10 Pa. Superior Ct. 132; Standard Plate Glass Co. v. Water Co., 5 Pa. Superior Ct. 563; Rabe v. Coal Co., 213 Pa. 252; Hogg v. Water Co., 168 Pa. 456; Lee v. Springfield Water Co., 176 Pa. 223; Hoffman v. R. R. Co., 39 Pa. Superior Ct. 47.

      July 20, 1910:
    The evidence was admissible in line with the general principle that the measure of damages for injury to real property is the cost of remedying the injury, unless that exceeds the value of the land: Robb v. Carnegie, 145 Pa. 324; Lentz v. Carnegie, 145 Pa. 612; Gift v. Reading, 3 Pa. Superior Ct. 359; Welliver v. Canal Co., 23 Pa. Superior Ct. 79; Eshleman v. Martic Twp., 152 Pa. 68.
    The plaintiff failed to show by any calculation supported by the evidence that he was damaged in any sum approaching the verdict of the jury or even the amount of the judgment as reduced by the court.

      W. U. Hensel, with him A. E. Burkholder, for appellee.
   Opinion by

Henderson, J.,

The defendant appropriated water from three springs which were tributary to a creek on which the plaintiff owned and operated a grist mill, all the power for which was supplied by the creek. The defendant owned the land on which the springs were situated and the water was diverted without condemnation proceedings. This action was for damages resulting from the subtraction of the water and the consequent loss of power at the plaintiff’s mill. The taking of the water is admitted and the plaintiff’s right of action is not denied. The contention is that the plaintiff did not establish his damage by definite testimony and that the court erred in refusing to admit evidence offered by the defendant to show the cost of producing power with a gasoline engine or electric motor. The evidence was contradictory as to the amount of water taken from the springs but it was definite on each side and as shown by the plaintiff amounted to a quantity sufficient to produce one-fifth of a horse power. It also appeared that the operation of the flour mill required five and seven-tenths horse power and the feed mill considerably less, and that the capacity of the mill when in continuous operation was eighteen barrels of flour in twenty-four hours, but that the annual production was from 1,200 to 1,500 barrels on which the profit was about $1.00 a barrel. Evidence presented for the plaintiff shows that there was generally a shortage, of water and that it was necessary to shut down the mill as often as twice a week because of lack of water, except yd1611 there was a heavy rain or a freshet from melting snow. It also appeared that the loss of power which would have been furnished by the water taken by the defendant would have made it possible to operate the mill at times when without it flour could not be ground. There was a consequent loss not only of the power measured by the water withdrawn but the loss of the use of the whole mill for many days during the four years covered by the declaration, and the damage was not simply the loss of power but the loss of the use of the property. It cannot be logically contended, therefore, that the plaintiff is only entitled to recover to the extent of the proportion which the water taken bore to the whole quantity used in propelling the mill. The jury could have well concluded from the evidence that there was usually a deficiency of water at the mill and that the whole quantity taken by the defendant could have been effectually used in increasing the power necessary to turn the mill wheels. There would still have been a large deficiency, but the volume conveyed away in the defendant’s pipe would have furnished an accumulation in the dam which would have added its weight to keep the mill going. For just how long a period in any instance there was such a volume of water in the creek that the outflow of these springs was not needed at the mill was not shown in the evidence, but that it was for brief periods is plain and in the nature of the case it could not be expected that exact figures could be given on that subject nor is it necessary that they should be. Where it is proved that damage has resulted from an injurious trespass and the only , uncertainty is as to the exact amount thereof such uncertainty is not ordinarily ground for refusing to allow any damage at all if the evidence furnish a basis from which a reasonable calculation can be made: 3 Sutherland on Damages, sec. 672; Hooper v. Story, 155 N. Y. 171. A part of the damage claimed in Hogg v. Water Co., 168 Pa; 456, was the loss of pasture caused by lack of water and the evidence was less definite there than was produced by the plaintiff here. It is impossible to arrive at nice calculations in a case of this character, but we think there is evidence that all of the water taken could have been advantageously used by the plaintiff for a very large part of the period involved, and as the court reduced the amount of the verdict nearly one-half the defendant has little ground of complaint.

The injury complained of was temporary and the measure of damages appropriate in the case of a permanent injury does not apply. A permanent injury will not be presumed and where one seeks to recover damages on that theory he must aver and prove that his property is permanently injured or at least that the condition complained of is reasonably certain to be permanent: Hoffman v. Coal Co., 16 Pa. Superior Ct. 631. In the case of a temporary injury the question is, What will it cost to restore the property damaged to its former condition? This was the rule stated in Lentz v. Carnegie, 145 Pa. 612, and such is the effect of all of our authorities. This restoration is not the providing of a substitute for the property wrongfully destroyed but the putting of the injured party in his original condition. It is manifest therefore that the offer to prove what it would cost to produce a horse power by a gasoline engine or electric motor was not competent. Neither of these machines was available to the plaintiff. His mill was a water mill and he was not under legal obligation to install electric or gasoline power. If the defendant took away the means by which he operated his mill he could abide by the conditions and demand that he be compensated to the extent of his loss. Moreover, there was no offer to show what it would cost to install the substituted power or that it was at all practicable, taking into consideration the condition and character of the plaintiff’s property, without an outlay altogether out of proportion to the end to be accomplished. If the plaintiff instead of accepting the situation as produced by the defendant had supplied the lost power by securing a new water supply or introducing a different method of propelling his machinery he might have shown the cost of this change as was apparently done in Lee v. Water Co., 176 Pa. 223, and in that event it would have been permissible for the defendant to show that the plaintiff’s figures as to cost were extravagant, but we do not find any case which supports the position that the defendant may introduce evidence of the cost of a different kind of power as a method of determining his liability. After a careful consideration of the case we do not find such support for the plaintiff’s position as to justify a reversal.

The judgment is affirmed.


author: Oblad y, J.,

text:
    Sweeney v. Arrowsmith.

      Taxation — Mortgage—Purchase money mortgage — Corporation—Priority of lien.

    The lien of the commonwealth for taxes due on the capital stock of a corporation has no priority over a purchase money mortgage given by an individual who was the corporation’s grantor.
    Argued Nov. 12, 1909.
    Appeal, No. 220, Oct. T., 1909, by the Commonwealth of Pennsylvania, from order of C. P. Berks Co., Jan. T., 1909, No. 27, disallowing the claim by the commonwealth in the distribution of a fund in the Matter of Pamelia C. Sweeney v. Arthur V. Arrowsmith, with notice to The Pendora Park Company, Terre-Tenant.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exception to order of distribution.
    Endlich, P. J., filed the following opinion:
    On February 15, 1908, plaintiff conveyed to defendant a certain property in the city of Reading, taking from him at the same time a mortgage for part of the purchase money. Incumbered by this mortgage the property was, in March, 1908, conveyed by defendant to one Frishmuth, and in the following April by him to The Pendora Park Company, a corporation. On September 18, 1908, the auditor general and treasurer of this commonwealth settled an account against the company for tax due the commonwealth on capital stock, and a lien therefor ($143.11) was certified to and entered in the office of the prothonotary of the county to No. 1, September T., 1908. On December 24, 1908, a sci. fa. was issued on the mortgage against Arrowsmith, with notice to the company as terre-tenant. Upon this proceeding in due course the property was sold by the sheriff and its proceeds were brought into court for distribution. A decree for the amount of the claim of the commonwealth was asked in advance of the mortgage, reducing to that extent the amount remaining for the mortgagee, who, upon allowance of the decree nisi, filed these exceptions.
    It is obvious at a glance that if the distribution to the commonwealth is to stand, it is out of the mortgagee’s pocket that payment will be made of what is owing by another party with whom she in the conveyance of the land and in the acceptance of the mortgage had no dealings whatever. She has sold her property to an individual for a stipulated .amount. For that amount, less the cash paid down, she has accepted a pledge of the property itself. Her vendee, or rather the grantee of her vendee, transfers it to a corporation. The corporation fails to pay the state tax due by it. Upon default on the mortgage the mortgagee proceeds to collect under it the balance of the purchase money due her by her contract with her vendee. The state, by virtue of a lien filed against the corporation’s property, requires the mortgagee to pay the debt of the corporation and to accept just that much less in payment of her land than the price for which it was conveyed. The proposition involved seems repugnant to a clear dictate of natural justice; and wherever such is the case, as intimated by Mr. Justice Woodward in Evans v. See, 23 Pa. 88, at p. 91, it is necessary to look closely whether the result is one which the law requires a court to sanction.
    There is no perfect analogy between the case here presented and one in which a mortgagee finds- himself postponed to liens entered against the property for municipal taxes assessed upon the owner. Doubtless such taxes are a personal claim against the latter: May’s Est., 218 Pa. 64. But by various statutes the property is made liable for them ahead of mortgages antedating them. It is well understood that these taxes are assessed with reference to the property and its value. Anyone who takes a mortgage upon it is apprised in advance that his security is subject to diminution to the extent that taxes assessed with respect to it may remain unpaid by the owner, whoever he may be. On the other hand, the state tax upon corporate capital stock is not a tax assessed specifically upon or with reference to. the realty owned by the corporation.. It affects the realty (at least as against other lien creditors) only by virtue of the certification and filing of the lien: Wm. Wilson & Son Silversmith Co.’s Est., 150 Pa. 285; Gladden v. Chapman, 188 Pa. 586. It cannot be reasonably supposed, therefore, that one selling land to an individual and taking a mortgage upon it from him for part of the price should foresee or actually contemplates the eventuality of its passing at some future time intp the hands of a corporation — a failure of that corporation to pay its state tax upon capital stock — and the impairment, possibly the wiping out, of the security for the unpaid purchase money by the enforcement of a lien filed therefor by the commonwealth and taking precedence of the mortgage.
    The commonwealth’s position in this case rests upon the Act of June 7, 1879, P. L. 112, sec. 14, and its supplement, Act June 1, 1889, P. L. 420, sec. 31. These enactments declare that upon a judicial sale of the “property” of a corporation “all taxes due the Commonwealth shall first be allowed and paid out of the proceeds of such sale, before any judgment, mortgage or other claims.....” The purpose, of the statutes, as expressed by their titles, was the raising of revenue by state taxation. The subjects of taxation dealt with in these sections are, inter alia, corporations. As regards them the purpose of the provision referred to clearly was (besides facilitating the collection of a tax due the commonwealth) to make it impossible for corporations or those dealing with them to defeat the claim of the commonwealth for such tax, the one by giving, the other by obtaining against them prior liens upon the property owned by the corporations. The liens postponed to that of the commonwealth, therefore, looking at the scope and purpose of the law, are such as are created by or procured against-the delinquent corporations. The generality of the phrase “any judgment, mortgage or other claim” must be restricted accordingly; for it is a maxim of statutory interpretation that the language of a statute, however broad, is to be understood with reference to its scope and object and is not intended to change the law beyond what is necessary to serve these: see Marquette v. Berks County, 3 Pa. Superior Ct. 36, 39 — just as in the interpretation of a contract the terms in which it is conceived, no matter how general, are to be taken as comprehending only those things in respect to which it appears that the parties proposed to contract: Smith's Est., 210 Pa. 604. It is very plain that neither the mortgage; incumbered with which The Pendora Park Company bought this land, nor the judgment in the sci. fa. was a lien created or obtained against the company: see Com. v. Coal & Iron Co., 1 Pa. Dist. Rep. 742, per Simonton, P. J. It is therefore not within the class of liens over which the statutes give a preference to the claim of the commonwealth for taxes.
    Furthermore, according to the letter and obvious meaning of those statutes, it is out of the proceeds of the sale of the property of the delinquent corporations that the claim of the commonwealth is preferentially payable. What was The Pendora Park Company’s "property” in this real estate? Simply what is termed the equity of redemption. That, with the possession subject to the rights of the mortgagee, was all it ever acquired. The rest belonged to the plaintiff before she conveyed to defendant and for the purposes of security never passed out of her, but was retained to her by the purchase money mortgage executed simultaneously with her conveyance to defendant. It is not to be overlooked that a mortgage, though in common acceptation a mere security for a debt, is after all in many respects much more, viz., a conveyance of land, investing the mortgagee at least with a conditional ownership of it together with a right of entry and possession until paid: see Tryon v. Munson, 77 Pa. 250; Nerpel’s App., 91 Pa. 334; Cridge v. Hare, 98 Pa. 561; Datesman’s App., 127 Pa. 348; Peebles’ Est., 157 Pa. 605. It is very manifest that upon a sale of the entire estate in the property under proceedings upon mortgage, an allowance, out of the proceeds, of the commonwealth’s claim against the corporation ahead and to the prejudice of what is needed to satisfy the plaintiff would be a payment of that claim, not out of the proceeds of the sale of the corporation’s property, but out of that of the plaintiff which is not what is required by the statutes invoked. The tax is a tax upon the property of the company: Com. v. Delaware, etc., R. R. Co., 165 Pa. 44 — and it can justly come only out of that property: Phila. & Reading R. R. Co. v. Com., 104 Pa. 80.
    For the reasons given it would appear that the ground of objection stated in plaintiff’s first exception must be regarded as well taken; and this conclusion makes it unnecessary to consider the remaining exceptions.
    The plaintiff’s first exception to the decree awarding the sum of $143.11, to the commonwealth of Pennsylvania on lien filed to No. 1, September Term, 1908, is sustained, and said decree is vacated and set aside.

      July 20, 1910:

      Error assigned was the order of the court.

      J. Wilmer Fisher, for appellant.

      John B. Stevens, with him Garrett B. Stevens, for appellee.
   Opinion by

Oblad y, J.,

After a careful examination of this record, a majority of the court are of the opinion that the conclusion reached by the court below is a correct one, and the judgment is therefore affirmed.


author: Orlady, J.,

text:
    Overton Township Road.

      Road law — Petition—Termini.
    A petition for a public road is fatally defective which specified that the road is “to connect with a proposed road” in another county.
    Argued Nov. 15, 1909.
    Appeal, No. 226, Oct. T., 1908, by Overton Township, from order of C. P. Bradford Co., May T., 1906, No. 164, dismissing petition to report of viewers In re Petition for Public Road in Over-ton Township.
    Before Rice, P. J., Hendebson, Mobbison, Oblady, Head, Beaveb and Pobteb, JJ.
    Reversed.
    Petition for a public road.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were in dismissing petition to report of viewers.

      M. E. Lilley, of Lilley & Wilson, for appellant.
    An unopened street is an improper terminus: Plainfield Twp. Road, 6 Pa. C. C. Rep. 412; Manchester Twp. Road, 8 York County, 169; Sadsbury Road, 9 Pa. C. C. Rep. 521.

      July 20, 1910:
    The termini of the projected road are the only means of its identification and reasonable certainty in reference thereto is essential in both the petition and the viewers’ report: Derry Twp. Public Road Vacation, 11 Pa. Superior Ct. 232.

      Stephen H. Smith, for appellee.
    An unopened state or county road may be a suitable place for the termination of a public road: Road in Jefferson & Rush Twps., 2 W. N. C. 138; West Goshen Roads, 7 Pa. C. C. Rep. 250; Kyle’s Road, 4 Yeates, 514; Cassville Boro. Road, 4 Pa. Superior Ct. 511; Hector Twp. Road (No. 1), 19 Pa. Superior Ct. 120; Sewickley Twp. Road, 23 Pa. Superior Ct. 170; Cornplanter Twp. Road (No. 1), 26 Pa. Superior Ct. 20.
   Opinion by

Orlady, J.,

This is an appeal from the judgment of the court in a road proceeding, arising under the special law relating to roads in Bradford county. The proceeding is in the court of common pleas, but the decisions affecting this proceeding are the same as under our general road law.

The original petition was for “a road to begin at a point on the public road leading from the village of Over-ton to Eldresville, by the way of Sugar Ridge, where the lane of John Shanhan intersects said road; to connect with a proposed road in Elkland Township, Sullivan County, leading from a point in a public road near Frank Mullen’s by way of Jasper Fawcett’s residence, to Bradford County line, at which point the two proposed roads are intended to unite.”

The second assignment of error raises the question of the sufficiency of the designation of the termini. The effect of not strictly complying with the statute and decisions relating to the opening of a new road, has been so fully and clearly considered by Judge Rice in Corn-planter Twp. Road (No. 1), 26 Pa. Superior Ct. 20, that we quote at length from that, case .as-decisive of this.

“The petition for the view lies at the foundation of all subsequent proceedings and can do no more than to state the beginning and ending. They are the initials which describe the proceeding and limit the authority delegated by the court in its order to the viewers: Road in Lower Merion, 58 Pa. 66, and the cases there cited; Road in O’Hara Twp., 152 Pa. 319; Derry Twp. Road, 11 Pa. Superior Ct. 232; Road in Dunbar Twp., 12 Pa. Superior Ct. 491; Crescent Twp. Road, 18 Pa. Superior Ct. 160; Sewickley Twp. Road, 23 Pa. Superior Ct. 170. Reasonable certainty, therefore, in the description of the termini in the petition is requisite. But mathematical precision often would be impracticable, and the foregoing, as well as other cases, show that it is not absolutely indispensable: Springfield Road, 73 Pa. 127; Road in South Abington Twp., 109 Pa. 118; Road in Sterrett Twp., 114 Pa. 627; Cassville Boro. Road, 4 Pa. Superior Ct. 511.”

It is sufficient if there be substantial conformity between the petition and the report, and if they be described so that the road can be located with reasonable certainty. If there is substantial conformity between the petition and the report, and either terminus is definitely fixed in the report, a defect in the description of the other terminus is not necessarily fatal; for this may be ascertainable by tracing the courses and distances: Hector Twp. Road (No. 1), 19 Pa. Superior Ct. 120; but see Kennedy Twp. Road, 40 Pa. Superior Ct. 70.

The trouble in this case is twofold. First, it is to connect with a road not yet in existence, and for aught we know may never be laid out as contemplated by the petitioners in this or in that proceeding. ' Second, the proposed road is in another county, “At which point the two proposed roads are.intended to unite.” The Bradford county court is without .jurisdiction to lay out a public road in Sullivan county, even if the terminus were definitely ascertained. The ending terminus of this proposed road is so uncertain and indefinite as to location, even if the road in Sullivan county were established by law, though unopened, that it is impossible to fix it as a point certain.

This assignment of error is sustained and the order- of the court below is reversed.


text:
    Blackburn v. Adams Express Company, Appellant.

      Carriers — Common carriers — Railroads—Live stock — Presumption— Evidence — Limitation of liability — Act of congress of June 29, 1906, 84 Statutes at Large, 584-

    1. Where horses are shipped in good condition, but are delivered at their destination by the carrier inv-a damaged condition, and there is no proof as to what caused the injury, no presumption of negligence arises against the carrier from the mere injuries, as arises in the case of inanimate objects. The burden of proof is upon the owner to establish negligence on the part of the carrier; but this burden is met by evidence which would justify the jury in concluding that the condition of the horses was not reasonably accounted for in any other way than that the car'in which they were carried had been violently handled at the point of departure or some other place on the way.
    2. The act of congress of June 29, 1906, 34 Statutes at Large, 584, relating to interstate commerce in no way affects the Pennsylvania rule that a carrier cannot limit the amount of his liability for an injury caused by his own negligence.
    Argued Nov. 16, 1909.
    Appeal, No. 95, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., Aug. T., 1907, No. 101, on verdict for plaintiffs in case of Ephraim Blackburn and Joseph S. Townsend, trading as Blackburn & Townsend, v. Adams Express Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for loss of horses. Before Hemphill, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $515.02. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant, and in .refusing to limit the amount that might be recovered to $75.00 for each horse as stipulated in the contract of carriage.

      John Lewis Evans, with him Thomas. DeWitt Cuyler, for appellant.
    The burden was on the plaintiffs to prove negligence, and the injured condition of the horses without more was not sufficient to satisfy this burden: Pennsylvania R. R. Co. v. Raiordon, 119 Pa. 577; Davenport v. R. R. Co., 10 Pa. Superior Ct. 47; Crary v. R. R. Co., 203 Pa. 525; Schaeffer v. R. R. Co., 168 Pa. 209.
    When a statute of the United States requires a carrier to issue a bill of lading for all property received for interstate transportation and imposes on the carrier liability to the holder thereof for loss or damage, the validity of a provision in the bill of lading and the measure of the liability of the carrier must be determined not by local state law but by the common-law decisions of the supreme court of the United States: Macfarlane v. Adams Express Co., 137 Fed. Repr. 982; Taylor v. Weir, 162 Fed. Repr. 585; Hart v. R. R. Co., 112 U. S. 331 (5 Sup. Ct. Repr. 151); Trexler v. R. R. Co., 28 Pa. Superior Ct. 207; Stewart v. B. & O. R. R. Co., 37 Pa. Superior Ct. 273; Tullock v. Mulvane, 184 U. S. 497 (22 Sup. Ct. Repr. 372).

      A. M. Holding, for appellees.
    There was sufficient evidence presented by the plaintiffs in this case from which the jury could find that the injuries complained of were due to negligence for which the defendant was responsible: Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Davenport v. R. R. Co., 10 Pa. Superior Ct. 47; Schaeffer v. R. R. Co., 168 Pa. 209; Gross v. Express Co., 35 Pa. Superior Ct. 467.
    The injuries in this case being shown to have been due to the negligence of the defendant, the plaintiffs are entitled to recover damages based upon the actual value of the horses killed and injured; and the Carmack amendment of June 29, 1906, to .the interstate commerce act does not prevent such recovery: Grogan v. Adams Express Co., 114 Pa. 523; Weiller v. R. R. Co., 134 Pa. 310; Ruppel v. Ry. Co., 167 Pa. 166; Hughes v. R. R. Co., 202 Pa. 222; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477 (24 Sup. Ct. Repr. 132).
    July 20, 1910:
   Opinion by

Henderson, J.,

The defendant received from the plaintiffs twenty-eight horses to be transported from Zanesville, Ohio, to Oxford, Pa., in one of the defendant’s cars. When the car arrived at Oxford three of the horses were found to have been injured, two of them so severely that one of them died soon after it was taken from the car and the other was shot. The third was disabled for a long time and sold for much less than its "value before the injury. The uncontradicted testimony shows that the horses were in good condition when they were placed in the car at the point of shipment. There was no direct evidence of collision, derailment or other violent injury to the car, and the appellant therefore contends that there was not any evidence to charge the defendant with negligence. The case of Penna. R. R. Co. v. Raiordon, 119 Pa. 577, is cited as a case which rules the question., That action arose out of the shipment of a number of horses one of which was dead when the car arrived at its destination. The controlling fact in that case, which induced the decision of the court was that there was no evidence to show what was the cause of the death of the horse. No attempt was made to prove that he died from an injury resulting from a negligent act of the defendant’s servants in moving the train or handling the car. The plaintiff was in charge of the horses during the shipment; nothing was shown as to the defendant’s failure to perform any duty in the means of transportation and the plaintiff was unable to assign any cause for the death of the horse. Under these circumstances the court held that the plaintiff was not entitled to recover because he had failed to prove an injurious accident. The carrier’s contract was not one of insurance of the lives of the animals transported, but one of indemnity against loss arising from negligence in the course of the carriage. Unless the evidence tended to show that the loss was a consequence of some wrongful act of the defendant, the plaintiff had no cause of action. A distinction exists between animate and inanimate objects and between property liable to rapid loss or deterioration because of some inherent quality not connected with the manner of transportation and that which is not liable to such change. Where the injury may have been the result of natural causes not related to the carrier’s responsibility something more than the mere fact of the loss must be shown. The plaintiff must establish the defendant’s default. Where the property is inanimate and not subject to deterioration and is shipped in good condition' the fact that it arrives in a badly damaged condition at its destination raises an inference of negligence as to the manner of transportation; and in the case of animate property the injury may be of such a nature as to indicate violent or careless handling in the course of transportation and therefore evidence of negligence proper for the consideration of the jury: Laing v. Colder, 8 Pa. 479; Davenport v. R. R. Co., 10 Pa. Superior Ct. 47; Schaeffer v. R. R. Co., 168 Pa. 209. The plaintiff’s evidence is of the latter character and was properly submitted to the jury. It tended to show the application of violence to the horses and injuries of a character not likely to be caused otherwise than by a very severe shock or concussion. The only cause assigned by the defendant for the damage to the horses was that their injuries were received from kicks or the tramping of other horses, but the plaintiff’s evidence tends to exclude this theory and would justify the jury in concluding that the condition of the horses was not reasonably accounted for in any other way than that the car in which they were carried had been violently handled at Pittsburg or some other place on its journey. The case on this point is closely similar to Schaeffer v. R. R. Co., 168 Pa. 209, and is, we think, controlled by it.

The appellant further contends that the transportation of the horses involved interstate commerce; that the contract of carriage contained a stipulation limiting the liability of the carrier in case of injury and that since the enactment by congress of the act of June 29, 1906, 34 Statutes at Large, 584, the right of a carrier to limit his liability for negligence is a question to be determined according to the law as interpreted by the federal courts, and that the decision of' the supreme court of the United States in Penna. R. R. Co. v. Hughes, 191 U. S. 477, is not conclusive. This subject was presented for our consideration in Wright v. Adams Express Co., ante, p. 40, in which case an opinion was this day delivered. Our conclusion in that case was that the act of congress referred to did not affect the subject of the measure of damages in an action in Pennsylvania against a common carrier for negligence; that the particular subject was not legislated upon and that without such legislative action the rule in Pennsylvania remains unchanged.

The assignments are overruled and the judgment affirmed.


text:
    Ralston v. Sharon Hill Borough, Appellant.

      Sewers — Damages—Evidence—Eminent domain.

    1. On the trial of a feigned issue framed on an appeal from a report of viewers appointed to assess damages for the construction of a sewer, the right of the plaintiff to recover is limited to the damages arising from such injuries as were the direct, immediate and necessary or unavoidable consequences of the act of eminent domain itself, irrespective of the care or negligence in the performance thereof. If the injury results from negligence in the performance of the work, the remedy of the landowner is by an action of trespass.
    2. In a proceeding to assess damages for the construction of a sewer, the courts are without power to review the discretion of the municipality in adopting a plan for the location of the sewer. Evidence is therefore not admissible which tends to show that some other plan might have been more beneficial or less injurious.
    3. In assessing damages by the statutory proceeding for the taking of land for a sewer the jury may consider as entering into the element of damages, the amount of space occupied by the earth taken from the ditch, the travel of men and wagons along its course, the length of time occupied, and the character and value of the crops on the ground; but in considering such testimony they are not to consider any damages arising from negligence in the doing of the work.
    Argued Nov.' 18, 1909.
    Appeal, No. 227, Oct. T., 1909, by defendant, from judgment of C. P. Delaware Co., June T., 1907, No. 231, on verdict for plaintiffs in case of Hector M. Ralston et al., trading as Ralston Brothers, v. Sharon Hill Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Feigned issue on appeal from an award of a jury of view assessing damages for the construction of a sewer. Before Johnson, P. J.
    At the trial when the plaintiff was on the stand, he was asked this question:
    “Q. What is your estimate of the amount of damage done to you by the construction of this sewer and the manner it was constructed through your property?”
    Mr. Bliss: I object to that. The question is not what the damage was arising from the manner in which it was constructed, but, what was the damage arising from the necessary construction of the work?
    Objection overruled.
    To which ruling counsel for the defendant objects and prays the court to seal a bill of exceptions thereto, which is accordingly done. [1]
    “A. About a ton and a half of hay was destroyed. Q. And that was worth what? A. Well it was worth about $18.00 a.ton. . . . Q. What was your idea of the damage to your corn, the four acres altogether? What was absolutely destroyed and what you could not cultivate.”
    Mr. Bliss: I suppose my objection and exception applies to this?
    The Court: Yes.
    Mr. Hall: “Q. Have you figured that? A. The corn is worth about $200. The corn I had in that patch.”
    The Court: “Q. Not what the corn was worth. What was the damage? A. I guess they done about $100 worth of actual damage.”
    Mr. Hall: “Q. You say that during those eight days you had to keep your cows in? A. I had to keep them in the stable and in the barnyard for eight days. . . . Q. And during that time you had to feed them hay and féed? A. Had to feed them hay and grains in the stable. . . . Q. That cost you how much? A- The grains cost me $6.00 a load. Q. You had three loads. Your hay cost you $27.00? A. Twenty-seven dollars. . . .”
    Mr. Hall: “Q. What further damage did you sustain by reason of this blocking of this passage so far as the operation of your milk dairy was concerned? A. My cows milked from 320 to 330 quarts a day — before a couple of days they were down to 180 and 190 quarts. . . . Q. How do you determine about the amount? A. Well, they went down about 130 quarts. That is what they dropped. . . . Yes. That was an actual loss to me. If it had not been for that, they would not have went down. Q. You were supplying milk? A. I was supplying milk for my customers’ trade in Philadelphia. Milk routes. I had to turn around and buy that milk at the depot. During July, I had to pay seven cents a quart for about 130 to 140 quarts of milk, for about twenty days, and after that time, milk got a little plenty again and I paid five cents. . . . Q. Then you were again put to the expense of keeping your cattle? A. Yes. Had to keep them in the barn and in the yard again. Q. Did you keep an account of what the expense was? A; Yes. I fed about twenty-five bushel of grain extra to my cows, and in them twenty-one days I judge I used about three ton of hay. ... Q. For how many days? A. Twenty-one days. ... Q. Was there any loss of milk supply then? A. My cows went down about fifty quarts then. . . . Q. You lost fifty quarts for twenty-one days? A. Twenty-one days. Q. It was worth what then? A. Five cents a quart. I had to go and buy from a milkman.”
    Defendant presented this point:
    4. Under the testimony in this case, the plaintiffs cannot recover for the alleged loss of milk caused by their being deprived of pasture, since it has not been shown that this deprivation was the necessary result of the work undertaken by the borough, to which the answer of the court was as follows: Answer: That is a question for the jury. We cannot say that as a matter of law. If you find from the testimony that this loss of milk, and this money that he said he expended for grains and hay arose — could have been avoided by the contractor — why, of course, this point would be affirmed, but, as that is a question of fact, we decline to affirm it and submit it to the jury to say whether it is so or not. [2]
    5. The plaintiffs having failed to show what part, if any, of the damage sustained by them was the necessary result of the laying of the sewer, the verdict must be for the defendant. Answer: Refused. [3]
    6. Under all the evidence the verdict must be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiffs for $300. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-4) above instructions,'quoting them.

      Edward P. Bliss, for appellant.
    This case falls directly within the ruling in Chatham Street, 16 Pa. Superior Ct. 103.

      E. H. Hall, for appellees.

      July 20, 1910:
   Opinion by

Orlady, J.,

The borough of Sharon Hill, by proper proceedings, decided to construct a system of public sewers, and • in order to connect this system with Darby creek,, they entered into an agreement with the. owner of intervening land, known as the Lafferty farm of 112 acres, by which they obtained the right to lay two lines of terra cotta pipe across his land, aggregating about 1,300 feet in length. The plaintiffs were tenants of the property and operated it as a dairy farm. Not being able to agree with the borough in regard to the payment of the damages claimed by them for the entry upon the farm during their tenancy, they presented their petition for the appointment of viewers to assess the damages, and this action is a feigned issue, framed on an appeal from the award of a jury of view in that proceeding.

There can be no ground for controversy as to the law applicable to this case. In Chatham Street, 16 Pa. Superior Ct. 103, it was held that the municipal authorities, when adopting a plan for the location of a street,- sewer or other improvements, are vested with a discretion which the courts are without power to review, and in passing upon the benefits or damages arising from the execution of the plan, evidence tending to show that some other plan might have been more beneficial or less injurious is not admissible. A claimant is not to be .thrown out of court merely because in the opinion of the viewers, court or jury, the municipality might have adopted a different plan which would have served all useful purposes and worked no injury to the adjoining property. The injuries for which the municipality must answer in an action of trespass are those which result from negligence in the execution of the plan adopted. And as in Stork v. Philadelphia, 195 Pa. 101. The right .of the plaintiff to recover in this action was limited to the damages arising from such injuries as were the direct, immediate and necessary or unavoidable consequences of the act of eminent domain itself, irrespective of care or negligence in the performance thereof. For such injury a proceeding before viewers is the remedy provided by law. But if the injury resulted from negligence in the performance of the work the remedy must be by an action of trespass.

In Fyfe v. Turtle Creek Boro., 22 Pa. Superior Ct. 292, we said that when the improvement is the direct and proximate cause of an injury and the loss is the necessary and unavoidable consequence of a careful execution of the work, the land and every right of property thereto appurtenant is within the protection of art. XVI, sec. 8, of the constitution of Pennsylvania, and the act of May 16, 1891, P. L. 75, affords a prompt and appropriate remedy.

In this case the trial judge repeated the rule above announced a number of times in his general charge and concluded, as follows: “Now, this question is for you, gentlemen. It is all a question of fact. Take it and dispose of it, and award to these plaintiffs what they suffered, what their injury was from the necessary consequences of this work on this plan, and dismiss from your mind all damage that was caused by negligence in its execution.”

The case was tried.with great care both by counsel and court and the principal contention was in regard to the manner in which the work was done, the use of certain machinery, the amount of space occupied by the earth taken from the ditch, and the travel of men and wagons along its course, the length of time occupied, the character and value of the crops on the ground, all of which were properly submitted to the jury in a manner that could not be misunderstood. The appellees were excluded from the use of the land during the time , of the construction, nor could they interfere with the work, nor fix a time when it should be completed. It was purely a case for the jury, and was so regarded by the defendant as it adduced testimony in regard to the damages claimed by the plaintiff, so that there could be no binding instructions in its favor as asked for in a point submitted, nor do we find any error in receiving the testimony represented by the assignments of error. They are excerpts from a full examination of the witnesses, who were fully cross-examined, and the subject-matter of their testimony carefully investigated. The credibility of the witnesses and the effect to be given their testimony was for the jury. The assignments of error are overruled and the judgment is affirmed.


text:
    Murphy, Appellant, v. Matthews.

      Res adjudicata — Waters—Diversion of waters — Damages.
    Where a landowner brings suit against another to recover damages for the diversion of the water of a stream, and recovers a judgment based upon evidence of the difference in value of the land before and after the trespass, and the judgment has been paid, such landowner cannot maintain an action several years afterwards against the same defendant to recover damages for a continued diversion of the waters of the same stream.
    Argued Oct. 8, 1909.
    Appeal, No. 00, Oct. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., Oct. T., 1909, No. 1, for defendant non obstante veredicto in case of Maria Murphy v. Israel Matthews and the Philadelphia & Reading Coal & Iron Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the diversion of waters of a stream. Before Marr, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $250. Subsequently the court entered judgment for defendants non obstante veredicto. Plaintiff appealed.

      Error assigned amongst others was in entering judgment for defendants non obstante veredicto.

      J. W. Moyer, with him 8. M. Enterline, for appellant.—
    The case was not res adjudicata: Coleman’s App., 62 Pa. 252; Hartman v. Inclined Plane Co., 23 Pa. Superior Ct. 360; Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Bare v. Hoffman, 79 Pa. 71; Bigham v. Construction Co., 29 Pa. Superior Ct. 86; Gift v. Reading, 3 Pa. Superior Ct. 359.
    July 20, 1910:

      George M. Rhoads, with him Robert P. Swank, for appellees.
    When the subsequent action is upon the identical claim or demand between the same parties, a judgment of a court of competent jurisdiction upon the merits of a material question is a bar to the subsequent action: Rauwolf . Glass, 184 Pa. 237; Hartman v. Inclined Plane Co., 23 Pa. Superior Ct. 360; Coleman’s App., 62 Pa. 252; Packet Co. v. Sickles, 72 U. S. 580.
   Opinion by

Oblad y, J.,

This action of trespass was brought tq recover, punitive damages for the continuing use and damage to the plaintiff’s property, by the diversion of water from springs on the land of the Philadelphia & Reading Coal & Iron Company, an upper riparian owner, and which flowed in a definite, natural channel through and across the land of the plaintiff. The defendant, Matthews, obtained permission from the coal company to, and did divert and use the water on his adj acent property. This plaintiff brought her second action against the same defendants as those named in No. 401, June Term, 1905, and in her statement therein averred “that for more than seventeen years she had the free and uninterrupted use and benefit of the said stream of water in carrying on her farm, etc., as a riparian owner, which use during all of said time had been open, notorious, exclusive and continuous; that she had no other available source from which she could secure an adequate supply, etc.; that the defendant, Matthews, has built on the premises of the other defendant a tank or reservoir, and unlawfully diverted and continues to divert said stream, thus depriving her of the use and enjoyment of the water, etc.”

All matters .at variance between the parties in that suit were referred to three named arbitrators, who were appointed under the provisions of the act of June 16, 1836, and who met, heard the evidence and allegations of the parties, determined the matters in controversy, and awarded the sum of $300 to Maria Murphy, and against Israel Matthews, the defendant. The award was signed by the three arbitrators and dated September 7, 1906. On October 6, 1906, the counsel of Matthews gave to the attorney of record and who conducted the arbitration for the plaintiff his check for $300 to the order of M. M. Burke, Esq., and which was properly indorsed as “atty. for Maria Murphy” and was paid through the bank. At the same time the plaintiff’s attorney signed and delivered a receipt in the following form: “Received of George M. Roads, of counsel for Israel Matthews, the defendant above named, his check payable to myself as atty. for Maria Murphy, the plaintiff above named, for three hundred dollars, in full of the arbitrators’ award in said case, being for permanent damages to plaintiff’s property described in the plaintiff’s declaration in said case,” and the judgment on the award was satisfied of record.

In the present case, No. 247, September Term, 1909, the statement refers to the same land, same streams of water, same reservoir or tank, in the suit, No. 401, June Term, 1905, and the rendition of the judgment in favor of the plaintiff against Matthews which was directly on the point in controversy. The validity of the payment to the attorney of the plaintiff is not challenged, nor is that fact denied. The trial of the case now before us resulted in a verdict in favor of the plaintiff for $250 against Matthews and in favor of the other defendant, the coal company. A motion for judgment non obstante veredicto was allowed for the reason that the uncontracted testimony was, that on the trial before the arbitrators the cause of action was exactly the same, being to recover permanent damages, and that under all the testimony the court should have directed a verdict for the defendant, and after argument a judgment was directed in favor of the defendant. There are a number of assignments of error which become immaterial if the court entered the. correct judgment on this motion. Maria Murphy sat beside her counsel at the arbitration, heard his offers of testimony, and testified herself that the value of the farm was $12,000 before the alleged trespass, and that it was reduced in value by the diversion of the water to $6,000., The three arbitrators were called as witnesses and each said that the testimony that was offered before them as arbitrators was the value of the property before the diversion of the water and afterward. Her attorney, who tried the case, testified that the purpose of the offers made by him before the arbitrators was to show the depreciation in the value of the farm by reason of the taking of the water, that is, the difference between the price of the property or what it would bring in the market immediately before the taking of the water, and immediately after. At the trial the defendant presented a point asking for binding instructions, which was refused without reading it; and the question was reserved, whether under the evidence the verdict should not be for the defendants. When the subsequent action is upon the identical claim or demand between the same parties, a judgment of a court of competent jurisdiction upon the merits of a material question is a bar to a subsequent action: Rauwolf v. Glass, 184 Pa. 237; Hartman v. Incline Plane Company, 23 Pa. Superior Ct. 360; Coleman’s Appeal, 62 Pa. 252. The judgment of the court in setting aside the verdict and entering judgment for the defendants was fully authorized by Menner v. Canal Company, 7 Pa. Superior Ct. 135; Eardley v. Keeling & Ridge, 10 Pa. Superior Ct. 339; Holland v. Kindregan, 155 Pa. 156; and Knupp v. Brooks, 200 Pa. 494.

The judgment is affirmed.


author: Orlaby, J.,

text:
    Somerset Door & Column Company v. O. M. Weber Company, Appellant.

      Contract — Sale—Lex loci — Custom.
    Where a manufacturer is requested to quote a price and he does so f. o. b. the place of residence of the proposed customer, and six weeks thereafter the customer requests an order to be booked for a certain amount of goods at the price quoted, and the manufacturer accepts the offer, the place of the contract is fixed by the place of the acceptance; and if the contract is to be construed in the light of a trade custom, it is the custom of the place of acceptance and not of the place from which the offer is made, that will prevail. In such a case the letters f. o. b. followed by the name of the customer’s residence were intended to fix a price beyond which no charge could be made against the vendee either by shipper or carrier, and did not necessarily imply that they were to be delivered at the place mentioned as a consideration of the contract.
    Argued Dec. 9, 1909.
    Appeal, No. 134, Oct. T., 1909, by defendants, from judgment of C. P. Montgomery Co., June T., 1908, No. 18, on verdict for plaintiffs in case of Somerset Door & Column Company v. O. M. Weber Company.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for breach of a contract to purchase goods. Before Weand, J.
    The facts appear by the opinion of the Superior Court.
    Defendants presented these points:
    19. The-contract was made in Somerset, Pennsylvania. Answer: Affirmed. [1]
    11. In the absence of evidence to show the existence of the custom alleged in this case at the place where the contract was made and was to be performed, which was the borough of Somerset, Pennsylvania, there could be no presumption that plaintiffs were familiar with them, and they cannot be bound by them. Answer: Affirmed, but if the custom referred to was general, uniform and notorious, plaintiffs might be bound by such custom. It is not necessarily the case that they would be bound, but they might be bound. [2]
    The court charged in part as follows:
    [The defendants, however, have raised another point which probably may solve this trouble, although that is entirely a question for you. Defendants testify that before these doors had been made, on July '31 they wrote a letter to the plaintiff company in which they called their attention to this fact: “Our plan is after the usual construction and is according to the underwriters’ specifications.” You have had explained to you what the National Board of Underwriters is; an association composed .of insurance companies whose rules and regulations govern the method of insurance on certain buildings. Naturally, if you or I wanted to erect a factory and wanted insurance on it, we would be likely to inquire what the rules and regulations of the insurance companies were, so that we might procure insurance on our building. Now it appears that, under the rules of this underwriters’ association, for fire doors white pine is required. You have had the rule read to you and the reason for the rule. Now, although nothing was mentioned about underwriters in the original contract; yet if, before the plaintiffs commenced to manufacture these doors, the defendant company should want to change the contract, or to require something additional in it, they could do so, being subject, of course, to any damages which might accrue to the plaintiffs by reason of an entire failure of the contract or by reason of a change in its terms. Now when the attention of the plaintiffs was called to the underwriters’ specifications, it is for you to inquire and say what they should have done. If they were ignorant of the rules of the underwriters’ association, ought they not, when their attention was thus specifically called to it, to have made inquiry, either of the defendants to inquire what was meant by that, or to have obtained a copy of the rules in order to ascertain what was necessary? The plaintiffs, it- appeared, had no knowledge of any such association or of any such requirement and therefore they paid no attention to the letter. If they had, they would have had brought to their attention the fact that white pine was required to be inserted in fire doors, and the moment they were notified of that, it is for you to say as to whether their duty would not have been to have notified the defendants that, “Inasmuch as you require white pine, which is higher priced than yellow pine, there must be a change in the terms of our contract.” On the contrary, they paid no attention to the letter. It is for you to say as to whether they did or did not fail in their duty in that respect. As they have testified that they know nothing about this association, should they just fold their hands and rely on the contract as it was written, or was it their duty to take the matter up after they received that letter and endeavor to inform themselves as to whether something had been omitted from the contract which the defendants now wanted inserted therein. If, because of their neglect to make that inquiry, this trouble has arisen, it is for you to say whether they or the defendants must suffer the loss.] [3]
    Verdict and judgment for plaintiffs for $531.24. Defendants appealed.

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

      N.. H. Larzelere, with him Franklin L. Wright, for appellants.
    A contract must be held to have been made when the last act necessary to complete it was done: Emerson Co. v. Proctor, 54 Atl. Repr. 849; Perry v. Iron Co., 15 R. I. 380 (5 Atl. Repr. 632); Adams v. Lindsell, 1 Barn. & Ald. 681; Hamilton v. Ins. Co., 5 Pa. 339; Boyd v. Peanut Co., 25 Pa. Superior Ct. 199; Benners v. Clemens, 58 Pa. 24; Brown v. R. R. Co., 83 Pa. 316.
    But regardless of the place of contract the terms of the contract show beyond doubt that the doors to be constructed were to be delivered at Philadelphia, for a Philadelphia operation, and title was to there pass to the defendants. The place of performance by the understanding of the parties was Philadelphia: Dannemiller v. Kirkpatrick, 201 Pa. 218; Werner Saw Mill Co. v. Ferree, 201 Pa. 405; Boyd v. Peanut Co., 25 Pa. Superior Ct. 199; Lowrey v. Ulmer, 1 Pa. Superior Ct. 425.
    July 20, 1910:
    If we are right that this contract was not made in Somerset, then the custom as to the material out of which fire doors were to be constructed prevailing where the contract was made and performance by delivery must prevail: Guillon v. Earnshaw, 169 Pa. 463.

      Joseph Levy, with him Joseph Knox Fornance and Claude L. Both, for appellees.
    The posting or mailing of appellees’ letter of July 26, accepting appellants’ offer of July 25, completed the contract from that moment, and made the contract a Somerset contract: Adams v. Lindsell, 1 B. & Ald. 681; Hamilton v. Lycoming Ins. Co., 5 Pa. 339; Boyd v. Peanut Co., 25 Pa. Superior Ct. 199.
    It is a well-settled principle of law that the law, and the trade customs which the law recognizes, which govern the performance of a contract, are the law and trade customs of the place of performance of the contract: Guillon v. Earnshaw, 169 Pa. 463; Phoenix Iron Co. v. Samuel, 13 W. N. C. 50; Brown v. Camden, etc., R. R. Co., 33 Pa. 316.
   Opinion by

Orlaby, J.,

The contract between these parties is founded on their correspondence, beginning with a letter from the defendant dated June 12, 1907, at North Wales, Pennsylvania, which was circular in form, addressed to a number of parties, and directed among others to the plaintiff at Somerset, Pennsylvania. The letter opens with the statement, “We need the following list of tin lined doors,” and then enumerates a list of sizes and qualities, after which the following information is requested: “Kindly advise what

you count these tin lined doors per square foot, same to be delivered f. o. b., Philadelphia. . . . We prefer having a price per square foot, as the sizes enumerated are not exact, as the building is not up and the openings are not made as yet.” To this circular letter the plaintiff replied on June 13, “Can furnish doors as pr. your inquiry f. o. b., Phila., Pa., at 16c. pr. sq. ft.” Six weeks later, July 25, the defendant wrote: “We thank you for your proposition of the 13 ult. We would ask that you kindly book our order for the following to be shipped to Philadelphia,” giving the details of the doors desired, and concluding “kindly acknowledge receipt of the order.”

The first letter of inquiry was not in form or substance an order for goods, and did not bind anyone. It accomplished its purpose in securing the desired information, and the defendant, with the knowledge of the price sug-' gested in the plaintiff’s letter of June 13, then gave a definite order for the doors on July 25. The situation was so regarded by the defendant, and the letter of July 25 designated “our order” in the opening and closing sentences. The order was to be booked as of that time and was so regarded by the plaintiff who on the following day, July 26, accepted it by a letter as follows: “We have your order for doors and same will receive our earliest attention. We to-day place order for material for same, as we do not carry that in stock.” All doubt on this phase of the case is settled by the defendant’s letter of July 31, viz.: “We thank you for your letter of the 26 inst. in which you acknowledge receipt of our order of the 26 inst. Our plan is after the usual construction, and according to the Underwriters’ specifications. Kindly acknowledge receipt of this letter, and advise approximately when we can expect shipment.”

On August 7 the defendant again wrote: “We have no acknowledgment of our letter of 31st ult. Kindly advise whether you received this letter.” To which the plaintiff replied on August 8: “We have your order and letter, and on account of oversight and absence of the writer failed to answer. We have ordered the material for the doors which we could not get here and will take two weeks at least yet to come in,” etc. And on August 21: “The material has arrived and will start your doors on the 22nd, and will rush them through as fast as possible.” The goods were shipped from Somerset, Pennsylvania, on August 27, from O. M. Weber Co. consigned to O. M. Weber Co., Philadelphia, with an order on which the freight was paid by the defendant. When they were received by the defendant, and after some of them had been inspected, all were rejected as not having been made of the proper material, and notice was given to the plaintiff that they were held subject to its order.

The principal question is whether the contract was concluded at Philadelphia, where the goods were delivered f. o. b., or at Somerset, where they were manufactured. The trial judge held that the contract was made in Somerset, Pennsylvania, for the reason. that the defendant’s order of July 25, and the plaintiff’s acceptance of July 26, constituted the contract between the parties. The letters f. o. b., Philadelphia, were intended to fix a price beyond which no charge could be made against the vendee either by shipper or carrier, and did not necessarily imply that they were to be delivered at Philadelphia as a consummation of the contract. The freight was paid by the appellant at destination and credit allowed on the prices quoted: Werner Saw-Mill Co. v. Ferree, 201 Pa. 405; Hatch v. Oil Co., 100 U. S. 124. The doors were rejected because they were made of yellow pine instead of white pine, yet white pine was not specified or mentioned in the original order, and they were made strictly in accordance with the terms of the order. The burden of proof was on the defendant to show that white pine was intended and that it should-have been so understood by the plaintiff. It was contended that, while there was nothing in the original order to call for white pine, yet in the letter of July 31 which was prior in date to the making of the doors, the attention of the plaintiff was called to the fact that certain requirements were exacted, viz.: “Our plan is after the usual construction, and are according to the Underwriters’ specifications.” This it is urged was notice of a custom of trade which determined the character of the product. However, when the letter of July 31 was written, the defendant knew (by plaintiff’s letter of July 26) that all of the material for the doors had been ordered; It is well settled that the trade customs which the law recognizes as governing the performance of a contract and controlling in such cases are only the law and trade customs of the place of performance of the contract: Guillon v. Earnshaw, 169 Pa. 463. This contract was both made and performed at Somerset, and if the particular trade custom alleged did not exist there by notorious, universal and well established usage or was actually known by the plaintiff, it would not avail as a defense. The existence of such a custom of trade and all knowledge of it was denied by the plaintiff. This raised a question of fact, which was fully and clearly explained and submitted to the jury both in the general charge and in the eleventh point and its answer. The plaintiff denied that it had any knowledge of any rules issued by an underwriters’ association, and that no notice having been given to them of such an association in the original order, they were not bound by the specifications required by such rules. The effect of the lack of inquiry on this matter was so fully and carefully explained to the jury that the defendant has no ground of complaint. The case was tried and submitted with great fairness. We do not find any reversible error in the answers to the eleventh and nineteenth points for charge or in the instruction as to the effect to be given to the underwriters’ specifications as a part of the contract.

The judgment is affirmed.