author: Beaver, J.,

text:
    Denlinger v. Conestoga Electric Light & Power Company, Appellant.
    February 25, 1907 :

      Appeals — Bond—Approval of bond — Quashing appeal.

    Where on an appeal by a business corporation from a money judgment, the record shows that objection was made to the appeal bond, and that no other bail was offered, and that the bond was not approved by the prothonotary, the appeal will be quashed.
    Argued Nov. 16, 1906.
    Appeal, No. 196, Oct. T., 1906, by-defendant, from judgment of C. P. Lancaster Co., Nov. T., 1904, No. 67, on verdict for plaintiff in case of J. W. Denlinger v. Conestoga Electric Light & Power Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal on the ground that the appeal bond had not been approved by the prothonotary of the court below.

      B. F. Davis, for appellant.

      G. Eugene Montgomery, with him W. J. Eberly, for appellee.
   Opinion by

Beaver, J.,

The Act of May 19, 1897, “ regulating the practice, bail, costs and fees on appeals to the Supreme Court and Superior Court,” P. L. 67, sec. 15, provides: “ That, in all other cases where a corporation other than a county, township or municipal corporation, appeals on its own behalf, such appeal shall be quashed, unless bail is given to operate as a supersedeas, as by this act required.”

The bail required to operate as a supersedeas, under the act, is provided for as follows: Section 6. “ An appeal from an order, judgment or decree directing the payment of money shall operate as a supersedeas, if the appellant gives bond with sufficient surety or sureties in double the amount of said order, judgment or decree and all costs accrued and likely to accrue, conditioned that the appeal be prosecuted with effect and that the appellant shall pay all costs and damages awarded by the appellate court or legally chargeable against him,” in which bond, under the provisions of section 5, the prothonotary or clerk of the court from which the appeal is taken shall fix the amount of bail and approve or reject the security offered.

In this case the record, as printed by the appellant, shows : “ September 7,1906, defendants take an appeal to the Superior Court and give bond in the sum of $585.00.” It does not affirmatively appear that the bond was approved by the prothonotary, as required by the provisions of the act above referred to. The copy of the bond, with its indorsement, is set out in the book of the appellee, by which it appears: “ Appeal bond filed September 7, 1906. Same day, Mr. Denlinger objects to the sufficiency of the within bond and surety and to the approval of the same, and the bond was not approved.” It does not appear that other bail was given or that the bond ever was approved by the prothonotary. It becomes our duty, therefore, under the mandatory provisions of the act, to quash this appeal.

It may not be improper to say, however, that, if we did not feel it to be our duty, under the circumstances, to quash the appeal, we would affirm the judgment, inasmuch as the questions involved were purely those of fact, which were fairly submitted to the jury. If the jury believed the testimony, the plaintiff having been employed by the vice president, having rendered service to the defendant, and the contract having been ratified by the president of the corporation, and a distinct promise to pay made, and that no payment had been made on account of such service, we think the recovery was fully justified. The questions of fact involved in the case were undoubtedly for the jury, and, notwithstanding the multiplicity of the appellant’s assignments of error, they seem to us to be very simple and to have been properly submitted.

Appeal quashed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Owen, Appellant.
    February 25, 1907 :

      Appeals — Failure to file assignments 'of error in'writing in the Superior Court — Quashing appeal.

    An appeal will be quashed where the appellant fails to file in the appellate court written assignments of error on or before the first day of the week to which the case is assigned for argument as provided by rule 13.
    Argued Nov. 16, 1906.
    Appeal, No. 211, Oct. T., T906, by-defendant, from judgment of Q. S. Blair Co., Oct. T., 1906, No. 52, on verdict of guilty in case of Commonwealths. W. L. Owen.
    Before Rice, P. J., Porter., Henderson, Morrison, Orlady, Head and-BEAyER, JJ. .
    Appeal quashed.
    Motion to quash appeal on ground, that written assignments of error were not filed as provided by rule 13.

      W. 0. Fletcher, with him J. F. SulliOan, for appellant.

      J. B. Kurtz, district attorney, with him A. A Foster, for appellee, filed no printed brief. ,
   Opinion by

Beaver, J.,

Our rule XIII, requires that “ In all cases the counsel for appellant shall specify in writixig the particular errors which he assigns, and file the same with the prothonotary' ,of this court, on or before the first day of the week to which the case is assigned for argument, and, on failure so to do, the court may quash the appeal or affirm the judgment.”

We have many times pointed out the reason and necessity for the observance of this rule. The records of this court consist, after the return to the court below of the record of the case from which the appeal was taken, of the assignments of error and the opinion of court. Without the former, the latter has little significance, being based entirely upon the errors assigned and not in every case reciting them. It is, therefore, necessary to the integrity and a correct understanding of our records, that this rule should be strictly enforced. The failuve to comply with it is invoked by the appellee as ground- for quashing the appeal.' Under the circumstances, we are disposed to allow the motion.

' It may not be improper to say that, in case this motion, in the discretion of the court, were not allowed, we are all of the opinion that the judgment of the' court below should be affirmed.

Appeal quashed.


author: Porter, J.,

text:
    Smith, v. Perry, Appellant.
    February 25, 1907:

      Contract — Acceptance of offer — Sale of stock — Failure to accept offer as made.

    Where an owner of stock of a corporation offers to sell it on certain terms, and the person to whom the offer is made, instead of accepting it according to its terms, tenders a qualified acceptance, the qualification of the acceptance renders the acceptance nothing more than a new offer, and if the seller does not accede to the variance of the terms, the parties do not arrive at an agreement which is binding upon either of them.
    Argued Oct. 8, 1906.
    Appeal, No. 90, Oct. T., 1906, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1905, No. 1,881, on bill in-equity in case of J. Ernest Smith v. Robert- S. Perry.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JJ.
    Reversed.
    Bill in equity for specific performance. Before Martin, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree of specific performance.

      Albert B. Weimer, with him Erederick M. Leonard, for appellant.

      Ellis Ames Ballard, for appellee.
   Opinion by

Porter, J.,

This is a bill to enforce the specific performance of an alleged contract by the defendant to sell and deliver to the plaintiff 200 shares of stock of the Fuller’s Earth Company-General, a corporation of the state of Delaware. The answer conceded that, owing to the character of the stock and the relation of the parties to the corporation, the court had jurisdiction to decree a specific performance, if the alleged contract of sale had ever been made. The bill averred and the answer admitted that all the negotiations between the parties had been by a written correspondence, and that copies of all the letters relating thereto were printed as exhibits, with the bill. The only question upon which the parties were at issue and the learned judge of the court below called upon to pass, was whether the correspondence disclosed a contract, a definite proposition tendered by the defendant and accepted by the plaintiff without qualification. The learned judge of the court below held that the correspondence constituted a contract, and decreed that the defendant assign and deliver to the plaintiff the 200 shares of stock in question, and made perpetual a preliminary injunction restraining the defendant from disposing of the stock to any other party.

We have carefully considered the letters composing the correspondence and are unable to acquiesce in the conclusion of the court below that they constituted a contract. There were but 600 shares of the stock of the corporation outstanding, of which the plaintiff owned 200 shares, the defendant 200 shares and S. Rodmond Smith 200 shares. The corporation was indebted to each of said stockholders in the sum of $690.28, each stockholder holding a note for that amount, dated May 11, 1908, and payable on demand. The letter written by the defendant on November 10, 1904, so far as it is material to the consideration of this question, was merely a suggestion that the defendant was willing to consider a proposition to either sell his stock or buy all the stock of the corporation upon the basis that the party buying the stock should transfer the note of the company which he held, the same being split in two portions for that purpose, to the persons from whom he bought the stock, by indorsement of the notes, and that the purchaser should indorse all the notes of the company held by the sellers of the stock. This letter fixed no price for the stock, and was neither an offer to buy nor to sell, but was rather an invitation for an offer from the plaintiff. That the plaintiff so considered it is evidenced by his letter of December 5,'in which he states that he “ would be glad to consider any proposition that you (the defendant) make me for my interest in the company ; ” and he again on December 20, 1904, writes, referring to the letter of November 10, “your suggestion of re-organizing the Fuller’s Earth Company, in which you said you would consider taking over all the stock of the company, I am disposed at this time to sell my stock in the company, and if you still desire to make the purchase of the same we may come to a deal, if the price and terms of payment you offer are attractive.” The defendant’s letter, of January 3,1905, merely adds, as an additional element for the basis of negotiations, the suggestion that in case he bought he would pledge both his personal stock and the stock purchased, “ back of his personal obligation.” The plaintiff in his letter of January 4, 1905 says : “ I understand the basis on which you would sell or dispose of your interest, or buy my interest, in the Fuller’s Earth Company, and the only thing that remains to be determined is the price you would sell or purchase for. If you would, therefore, name such price we should be able to come to an understanding at once.” This letter was replied to by the defendant on January 6, 1905, and he then definitely states his understanding of the proposition on which he would be willing to buy or sell: “ in case I sell my stock to you I would receive from you a transfer of a note of the Fuller’s Earth Co., one-half the amount they owe you, and your personal indorsement of the note I hold for the amount the Fuller’s Earth Company now owe me, a total of about $1500.00, which in such case you would have guaranteed the payment of to me by the Fuller’s Earth Company, within a reasonable length of time, or the Fuller’s Earth Company, failing to pay, you would as guarantor take up the obligation, and hold the same against the Fuller’s Earth Company.” The plaintiff replied to this letter on January 9, 1905, stating that he now understood the proposition and would advise the defendant in the course of a few days. The plaintiff again wrote, on February 9, 1905, and this letter states his understanding of the offer of the defendant to buy or sell, and the price and terms ; viz: “ 1. A note of the company for one-half the amount due to the seller (purchaser) by the Fuller’s Earth Company, indorsed by the seller (purchaser), to be delivered.' 2. The note of the Fuller’s Earth Company now held by the purchaser (seller) to be indorsed by the seller (purchaser). 3. The notes to be for five years and the interest and principal to be paid by the Fuller’s Earth Company, and on its failure, by the indorser.” It may here be observed that the plaintiff in thus stating his understanding of the formal proposition referred to the purchaser as the seller and the seller as the purchaser, but it was conceded in the court below and upon argument here that no person was misled by this mistake, and that the parties understood that it was the purchaser who was to indorse and deliver the notes to the seller. The defendant in his reply to this letter, on February 24,1905, said that the plaintiff had, in the above letter, “ stated the proposition very clearly; but added that in case the plaintiff elected to buy, he, the defendant, would not care to sell unless the plaintiff also purchased the interest of Major Smith. We have here, in the plaintiff’s letter of February 9, and the reply of the defendant on the twenty-fourth of the same month, a definite written statement of the terms and conditions upon which the defendant offered to sell his stock or buy that of the plaintiff. The plaintiff, on February 28, 1905, wrote to the defendant: “ I have your favor of the 24th inst., and accept your' proposition to sell your stock and Major Smith’s stock interest in the Fuller’s Earth Company-General, in accordance with your proposition and agreement. To complete the matter therefore, enclosed please find, 1. The Fuller’s Earth Company-General’s note to your order for $690.28, dated March 1, 1905, payable in five years after date, with interest, indorsed by J. E. Smith. 2. The Fuller’s Earth Company-General’s note to J. E. Smith’s order $345.14, dated March 1st, 1905, payable in five years after date, with interest, indorsed by J. E. Smith. 3. Check of the Fuller’s Earth Company-General for $74.41 to your order, being one year, nine months and seventeen days interest, at 6%, on the personal note you hold against the company for $690.28, dated May 11th, 1903.” The letter then refers to two notes and a check, for like amounts respectively, payable to the order of or indorsed to S. R. Smith, being given for the alleged purchase of the stock of Major Smith, and then continues: “ You will please send me, therefore, your stock certificates for $20,000.00, and the note of the Fuller’s Earth Company-General for $690.28, dated May 11th, 1903, and also Major Smith’s stock certificates for $20,000.00 with the note of the company to him for $690.28, dated May 11th, 1903. . . . This, I take it, will complete the purchase and sale, in accordance with our agreement.” The notes and checks referred to were inclosed in the letter. The defendant replied on March 1, 1905, acknowledging the receipt of this letter, and the various notes and checks referred to, and saying : “ I have this day written Major Smith, drawing his attention to certain discrepancies between the consideration you tender and thé agreed upon proposition, and I am holding the whole matter in abeyance until I hear from him, when he will either accept your considerations and transfer the stock to you, or will return your tender and state the reasons.” The plaintiff replied to this letter, oh March 2, 1905, saying: “ My acceptance was of your proposition as made, and I thought I met the same in my payments to you in my letter of the 28th ult. The payment is a matter of detail, your proposition and my acceptance therefore was definite and conclusive.” The defendant wrote the plaintiff, on March 16, 1905, stating that the notes tendered in the communication of February 28, did not conform to the terms of the proposition of the ninth of the same month, and withdrawing all propositions made on behalf of himself and Major Smith, and with the letter returned the notes in question.

When the defendant wrote the plaintiff, on March 1,' 1905, that there were discrepancies between the proposition and the acceptance thereof by the plaintiff and that he, the defendant, was holding the whole matter in abeyance until he could hear from Major Smith, this was notice to the plaintiff that the defendant did not consider the acceptance as having been made in accordance with the terms of the offer. The letter written by the plaintiff on March 2, amounts to nothing more than a declaration that he had complied with the terms of the offer to’ sell, as he understood those terms. The whole cáse depends upon whether the plaintiff’s letter of February 28,1905, was an unconditional acceptance of the offer to sell as made by the defendant. The definite question is, did the plaintiff unconditionally accept that part of the offer which required that: “ 2. The note of the Fuller’s Earth Company now held by the seller to be indorsed by the purchaser.” The argument of the learned counsel for the plaintiff that the first paragraph of the letter written by the plaintiff on February 28, was an absolute and unconditional acceptance of the proposition of the defendant, and that all of the letter which follows, stating the manner in which the plaintiff proposed to comply with the terms of his acceptance, and that this constituted a performance of his contract as he understood its terms, must for the purposes of this case be considered as mere surplusage, is not well founded. That letter did not constitute an engagement to do anything by way of performance further than what the plaintiff then tendered. Had the defendant returned the new note which it was proposed to substitute for the demand note which he then held, he could not have upon that letter founded an action for damages for breach of an agreement on the part of plaintiff to indorse the demand note of May 11, 1903, for the plaintiff had in that letter clearly indicated that he did not intend to indorse the demand note nor agree to do so, but, on the contrary, he expressly demanded that the defendant should surrender the demand note of the Fuller’s Earth Company.

The acceptance by the plaintiff complied with all the terms of the offer made by the defendant, except as to what should be done with regard to the note of the Fuller’s Earth Company for $690.28, dated May 11,1903, payable on demand, and then held by the defendant. There can be no doubt as to what the terms of the offer required to be done with regard to that particular note; the defendant had in his letter of January 6, 1905, written, with respect to that particular branch of the offer, his explicit demand, “ and your personal indorsement of the note I hold for the amount the Fuller’s Earth Company now owe me; ” and the plaintiff had in his letter of February 9, 1905, clearly stated his understanding of that branch of the offer; viz : The note of the Fuller’s Earth Company now held by the purchaser (seller) to be indorsed by the seller (purchaser).” The offer of the defendant clearly required that the plaintiff should, in case he elected to purchase, indorse the demand note of the Fuller’s Earth Company then held by the defendant. The acceptance by the plaintiff as clearly required that the defendant should surrender that demand note and accept in the place thereof a new note of the Fuller’s Earth Company, dated March 1, 1905, and payable five years after date. The effect of this acceptance was to extend for five years the payment by the Fuller’s Earth Company of the debt which it owed to the defendant, which was then payable on demand. This was a radical departure from the terms of the offer to buy or sell, by the defendant, in which the correspondence had finally resulted. The plaintiff had not accepted according to the terms of the offer; his attempted acceptance amounted to nothing more than a new offer, which stood as much in need of acceptance, by the defendant, as that originally made by the latter; and hence, as the defendant did not accede to the variance of the terms, the parties never arrived at an agreement which was binding upon either: Hare on Contracts, 365.

The retention by the defendant of -the check of the Fuller’s Earth Company-General for $74.41, payable to the order of the defendant, did not constitute an acceptance of the new proposition made by the plaintiff. That check was, it is true, inclosed in the plaintiff’s letter of February 28, but the plaintiff was not a party to that check, nor was it a payment made by him. The check was made by the Fuller’s Earth Company-General, a corporation, payable directly to the defendant, and was given in payment of interest on a debt then owing by the corporation to the defendant. This was in no sense a part of the consideration to be paid by the plaintiff to the defendant for his stock, but was a payment by the corporation of its own debt. The first and second specifications of error are sustained.

The decree is reversed, and it is now decreed that the injunction be dissolved and the bill dismissed and that the plaintiff pay the costs in the court below and upon this appeal.


author: Head, J.,

text:
    Portland Ice Company, Appellant, v. Connor.

      Contract — Sale—Future deliveries — Mutual departure from terms of ■ contract — Notice—Time. . 1 '

    Where a provision in a contract for future deliveries stipulating for payments weekly upon presentation of. bills, has been .allowed, to remain a dead letter for more than a year after the contract was made, it is in the power of either party to determine at any time that the relations created by the contract shall be resumed, and that thereafter a strict and’ literal compliance with' tbe contractual obligations will be accorded and expected; but such a determination, arrived at by one party' cannot become operative until after such fair, and reasonable notice as will afford to the other party an opportunity to adapt himself to the new situation. ■
    A retail dealer in ice in a city contracted for weekly supplies from a packer in another county. Payments were to be made weekly upon presentation of bills, but both parties ignored this provision of the contract for over a year. On a June twelfth, the seller wrote to the dealer a letter in which after complaining of some other matters he said: “Further than this, you are not keeping up your payments according to the agreement, which provides for weekly settlements. .-Unless a settlement is made on or before the 18th, .... we will be. .compelled to suspend shipments, and cancel our contract with .ypu-."-. On the eighteenth he wrote again as follows: “Not having, heard from you in reply to my letter of 12th. .... I am compelled to notify you that the contract is hereby cancelled and that no further shipments will be made.” It appeared"that by usual course of mail letters passing between the parties would reach destination the day following their date. A letter of the twelfth, reached the defendant on Saturday afternoon, which' was the thirteenth. Held, (1) that the questiop, whether the notice was within a reasonable time was a mixed one of law and fact, and was for the jury; and (2) that the letter of the twelfth was for the construction of the court, and was sufficiently plain fairly to advise the defendant of plaintiff's dissatisfaction with existing conditions, and the intention to stop shipments and cancel the contract unless its covenants were thereafter performed.

      Evidence — Inferences—What is reasonable under the circumstances —Question for jury — Time—Notice.
    When conditions group themselves into unusual or varying forms; when the inferences to be drawn from established facts may change with the personality of him who makes them; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances,. then the ascertainment, of the legal duty becomes . a mixed question of law and fact, and must be submitted to a jury.
    , In every case where a Pennsylvania court has declared, as a matter of law, that a given time was reasonable or unreasonable, it has been where it was so long or short, so clearly within, or widely without the limit contemplated by the law or the parties, that the assent of all fair minds to the correctness of the conclusion reached would be certain and undoubted.
    Argued Oct. 12, 1906.
    Appeal, No. 248, Oct. 1905,, by plaintiff, from .judgment of C. E. No. 1, Phila. Co., Sept. T., 1908, No. , upon certificate for defendant in case of Portland Ice Company v. Edward Connor, trading as Friendship Ice Company:
    Before Rice, P. J., Porter,. Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Assumpsit for ice sold and delivered. Before Brégy, J.
    The facts are stated in the opinion of the Superior Court.
    • .At the trial the defendant made the following offer:
    Mr. Conlen, I now offer to prove the damages sustained by defendant because of the recission of the contract on the part of the plaintiff.
    Objected to.- ,
    The Court: We all recognize the important point in this case. A decision one way ends it; a decision the other way continues the investigation.; In addition to the efforts of counsel, I have given it some thought myself overnight, and I have come to the conclusion that this question must be decided by the jury. That is not a technical decision of the objection, but it results in the overruling of the objection. I think that there are cases where these matters which are called reasonable notice .are for the court, like in commercial transactions where there is a binding rule that the thing must be done promptly, or done at once, but there are other cases where the same words, “ reasonable notice;” have been used which when analyzed mean that there must be a fair notice. A man must not be taken unawares. He must,. considering; all' the circumstances of the case, have a proper notice with the course of conduct allowed to exist in the past in order, to be pursued in the future, and that the man is going- to -stand on his legal rights, and I think that in many of these cases, unless it is shown manifestly one way or the other, that the court could not sustain a verdict rendered in a different way, that it is for the jury. It is somewhat like cases of negligence. There are plenty of authorities that say that negligence, where the facts are admitted, is for the court, but there are plenty of other cases where the facts are admitted say that negligence is not for the court, where there is only one side where the duty varies under certain circumstances. Where the rule of conduct is different the question is for the jury, but I will not elaborate the reason for the rule at this time, but simply decide it as I have already indicated.
    Exception to plaintiff. [1]
    Defendant presented these points :
    6. If the jury find that the notice given by plaintiff to defendant dated June 12, 1903, was not sufficiently definite, in that the plaintiff did not make clear to the defendant that immediate payment was required, then their verdict should be for the defendant. Answer: That I affirm. [2]
    7. If the jury find that in view of all the evidence that the notice dated June 12, 1903, from plaintiff to defendant was not reasonable notice, the verdict should be for the defendant. Answer: That I affirm. [3]
    Verdict and certificate for defendant for $610.62. Plaintiff appealed.

      JErrors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (2, 3) above instructions, quoting them.

      Wrn. Y. 0. Anderson and Alex. Simpson, Jr., for appellant.—
    What is a reasonable time or undue delay where the facts are not disputed, is a question of law to be determined by the court. Reasonableness in such cases belongeth to the knowledge of the law, and is, therefore, to be decided by the justices: Leaming v. Wise, 73 Pa. 173; Morgan v. McKee, 77 Pa. 228 ; Davis v. Stuard, 99 Pa. 295; Zineman v. Harris, 6 Pa. Superior Ct. 303 ; Acetylene Co. v. Smith, 10 Pa. Superior Ct. 61; Armour v. Produce Co., 28 Pa. Superior Ct. 524; Scale Co. v. Woodward, 29 Pa. Superior Ct. 142; Forsyth v. Oil Co., 53 Pa. 168 ; Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301.
    Tt was error to permit the jury to decide whether or not the written notice was definite or indefinite in its terms : Edelman v. Yeakel, 27 Pa. 26; Shafer v. Senseman, 125 Pa. 310; Holmes v. Oil Co., 138 Pa. 546; McFarland v. Newman, 9 Watts, 55; Sidwell v. Evans, 1 P. & W. 383.
    February 25, 1907 :

      W. J. Oorilen, of Oonlen, Brinton Acker, for appellee.—
    What is reasonable time depends upon all the surrounding circumstances affecting the subject-matter of the contract and the situation and circumstances of the parties to the' contract in each particular case. The question is for the jury: Forsyth v. North American Oil Co., 53 Pa. 168; Hamilton v. Phoenix Ins. Co., 22 U. S. App. 164 (61 Fed. Repr. 379) ; Tindal v. Brown, 1 Term Rep. 167; Ins. Co. v. Stark, 6 Cranch, 268; Cocker v. Mfg. Co., 3 Sumn. 530 ; Donahue v. Ins. Co., 56 Vt. 374; Lockwood v. Assurance Co., 47 Conn. 553; Haskins v. Ins. Co., 71 Mass. 432; Wait v. Ins Co., 13 Hun, 371; Green v. Haines, 1 Hilt. (N. Y.) 254; Bacon v. Harris, 15 R. I. 599 (10 Atl. Repr. 647); Jones v. Bloomgarden, 106 N. W. Repr. 891; Claus-Shear Co. v. Lee Hardware House, 140 N. C. 552 (53 S. E. Repr. 433).
    The question of definiteness of notice was for the jury.
   Opinion by

Head, J.,

The provision in the contract between the parties that payments for ice shipped were to be made weekly upon presentation of bills for the same, had been permitted, by mutual consent, to become and remain a dead letter for more than a year after the contract was made, and for some months after it had been modified in March, 1903. The plaintiff did not present its bills weekly or at regular intervals and the defendant, apparently, paid on account, from time to time, as his convenience or necessity permitted. The contract itself, as to the times of payment was never either modified or abrogated; it was simply ignored, neither party choosing to stand upon his strict contractual rights. It was, therefore, in the power of either to determine, at any time, that the relations created by the contract should be resumed and that thereafter a strict and literal compliance with the contractual obligations would be accorded and expected. But, for manifest reasons, such a determination, arrived at by one party, could not become operative until after such fair and reasonable -notice as would afford to the other party an opportunity to adapt himself to the new situation. So much was declared by this court when this case was formerly before us in its preliminary stage: Portland Ice Company v. Connor, 24 Pa. Superior Ct. 493 ; so much is frankly admitted by the learned counsel for appellant.

On June 12, 1903, the defendant wrote to the plaintiff a letter setting forth, at some length, the failure of the latter to keep his orders, for shipments of ice, up to the standard fixed by the contract, and then stating as follows: “ Further than this, you are not keeping up your payments in accordance with the agreement, which provides for weekly settlements and taking all in all the business is far from satisfactory. Unless a settlement is made on or before the eighteenth and some assurance given that shipments will move faster we will be compelled to suspend shipments and cancel our contract with you.” No word having been received from the defendant, the plaintiff, at some time on the eighteenth, again wrote : “ Not having heard from you in reply to my letter of 12th, relative to handling of the ice shipments and fulfillment of contract made on March 25th, 1902, and supplementary agreement of March 4th, 1903, I am compelled to notify you that the contract is hereby cancelled and that no further shipments will be made.”

This brings üs to the consideration of the important question raised by the first assignment, viz., was it the duty of the court to declare, as matter of law, that the notice of threatened cancellation, contained in the letter of June 12, above quoted, was or was not a fair and reasonable one under all the circumstances ; or did the ascertainment of its fairness and reasonableness involve such mixed elements of law and fact as necessarily carried it to a jury under proper instructions from the court ?

It is doubtless true that wherever, upon a given state of facts, the law, as defined by statute or declared by judicial decision, fixes with precision and accuracy the obligation of a party litigant, it becomes the duty of a trial court, the necessary facts being admitted or established by undisputed testimony, to apply and enforce the resultant legal principle. Even where the legal obligation is so broad that it consists merely in doing or refraining from doing what a reasonable man would or would not do under like circumstances, such conditions may, and often do, arise that our common experience of men enables us at once to perceive the line of conduct a rational man would naturally adopt. In all of such cases the determination whether a party has or has not performed his legal obligation is an unmixed question of law.

But when conditions group themselves into unusual or varying forms; when the inferences to be drawn from established facts may change with the personality of him who makes them ; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances, then the ascertainment of the legal duty becomes a mixed question of law and fact and must be submitted to a jury. The idea we have endeavored to express has been so well formulated in a case cited by the learned counsel for appellee: Claus-Shear Co. v. Lee, Hardware House, 140 N. C. 552 (53 S. E. Repr. 433), that we cannot do better than adopt its language. “We have examined somewhat extensively the decisions of other courts and text writers. The result of our examination leads us to the conclusion that what is ‘reasonable time’ is generally a mixed question of law and fact, not only where the evidence is conflicting, but even in some cases where the facts are not disputed, and - the matter should be decided by the jury upon proper instructions on the particular circumstances of each case (many cases cited). The time however may be so short or so long that the court will declare it to be reasonable or unreasonable as a matter of law. ... If from the admitted facts the court can draw the conclusion as to whether the time is reasonable or unreasonable by applying to them a legal principle or a rule of law, then the question is one of law. But if different inferences may be drawn, or the circumstances are numerous and complicated and such that a definite legal rule cannot be applied to them, then the matter should be submitted to a jury.”

Without attempting to review the many Pennsylvania cases cited by the learned counsel for appellant we think we may safely say there is no one of them that can be fairly said to attack the correctness of the principle above stated. In every ease where the court has declared, as a matter of law, that a given time was reasonable or unreasonable, it has been where it was so long or short, so clearly within or widely without the limit contemplated by the law or the parties, that the assent of all fair minds to the correctness of the conclusion reached would be certain and undoubted. It is true that in Leaming v. Wise, 73 Pa. 173, where the plaintiffs bought oil stock in November and waited until the following March before tendering back the stock and offering to rescind, the court held, as matter of law, that the delay was unreasonable, and Williams, J., in delivering the opinion uses this language: “ What -is reasonable time or undue delay, when the facts are not disputed, is, as is well settled, a question of law to be determined by the court.”

In Morgan v. McKee, 77 Pa. 228, the court held that a delay of a month in giving notice of an intention to rescind because of a failure to deliver certain goods, was unreasonable, and the same judge delivering the opinion again used the language above quoted from Learning v. Wise. If, in both of these cases, we look only to the questions actually decided we not only find them in harmony with the general principle we have been considering, but apt and forcible illustrations of those occasions where a court may and should, as a matter of law, declare that a certain time was unreasonable, a particular delay undue. On the other hand, if we look only to the language quoted, disassociated from the propositions decided and the conditions under which it was used, it might seem to furnish a warrant for the broad doctrine so earnestly contended for by the able counsel for appellant. But we cannot assent to the conclusion that the court intended to declare that in every case where the facts that affirmatively appear are not the subject of contradictory evidence, the court must determine, as a matter of law, that the time in question was reasonable or .unreasonable.

In Porter v. Patterson, 15 Pa. 229, it was held that a consignor, on being informed of a sale of his goods by the consignee contrary to instructions, is bound to express his dissent in a reasonable time, and what is a reasonable time depends on the circumstances of the case and is for the jury to determine. Mr. Justice Rogers, speaking for the court, said : “ Whether the answer, disavowing the sale, was made in a reasonable time, was a fact left by the court to the jury, who have found that fact in favor of the plaintiff. That the rule is, the consignor has a reasonable time, of which the jury must judge, has been so repeatedly ruled that it is no longer an open question.” So again in Forsyth v. North American Oil Co., 53 Pa. 168, it was held that the question whether the notice of recission was fair and reasonable was properly submitted to the jury. In neither of these cases can we discover any conflict in the evidence as to the facts from which arose the question as to the reasonableness of the time.'

In many actions founded on negligence, even where the facts affirmatively appearing are not disputed, the court is unable to dispose of the question involved, as a pure question of law, because no fixed standard of duty has ever been defined as the measure of individual obligation under such a state of facts: Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231. Moreover, in many such cases, and we think the present one belongs to that class, their proper solution requires- a consideration not only of the facts affirmatively established by the evidence, but of the inferences of other facts that may be legitimately drawn from those established. Such inferences, as we understand the law, can be drawn only by a jury: Trexler v. B. & O. R. R. Co., 28 Pa. Superior Ct. 198.

In the present case the defendant was a retail dealer in ice in the city of Philadelphia; the plaintiff was a packer and shipper with its place of business in Northampton county. • It is conceded that by usual course of mail letters passing between them, would reach destination the day following their date. The letter of June 12 reached defendant on the afternoon of the 13th, which was Saturday. Would it be a fair inference that the requirements of his business in the way of local deliveries would leave him but little chance to take up the subject of the letter on that day ? His reply, in order to be in time, must have been mailed some time on the following Wednesday. He therefore was left, at best, with but three full days within which to effect such changes in his business as would enable him to conform to the new standard set up by the letter. The evidence does not directly give any information as to his financial means. But it might be fairly inferred from the fact that he was always behind in his payments, that they were small, and that his ability to raise a considerable sum in a short time would depend on his success in making collections from his customers.

Under such, conditions we are unable to see what rule of law could be invoked, what standard of duty could be applied that would have enabled the learned trial court to determine, as a matter of law, that the time allowed the defendant, under the notice of June 12, was or was not reasonable under all the circumstances. On the contrary, we conclude that the question was a mixed one of law and fact, and was properly submitted to the jury in a charge that has not been complained of as to the manner of submission. The first assignment of error is therefore overruled.

But the court also submitted to the jury the question whether or not the notice of June 12 was sufficiently definite or explicit to apprise the defendant of the intention to rescind if the terms of the contract were not thereafter lived up to. In this we think the learned court fell into error. The notice was in writing. Legally speaking it was not ambiguous. It did not need or invite the aid of parol testimony to explain any of its terms. No such testimony was offered by either side. The court should have construed the paper and instructed the jury that it was sufficiently plain to fairly advise the defendant of the plaintiff’s dissatisfaction with existing conditions, and its intention to stop shipments and cancel the contract unless its covenants were thereafter performed. As we cannot tell, from the manner in which the case was submitted, how far the verdict favoring the defendant may have been predicated on the jury’s idea that the notice was not sufficiently definite or plain, we are unable to say that this error was not injurious to the plaintiff. Its correction, therefore, requires us to send the case back for another trial. The second assignment is sustained.

Judgment reversed and a venire facias de novo is awarded.


author: Rice, P. J.,

text:
    Fay, Appellant, v. Lester Piano Company.

      Contract — Building contract — Approval by architect — Fraud.
    In an action to recover a balance alleged to be due on a building contract, where the contract provided- that the work should be done under the direction of the architect whose decision should be conclusive, it is reversible error for the court to refuse to permit the plaintiff to show “that the architect made a mistake either in the plans or the specifications, which rendered it physically impossible to comply with both, that when that fact was called to his attention he directed the plaintiff to go on and finish that building according to the plans, to build the floor level, regardless of the old floors in the old building, which the specifications required should be on a line with the new floor; that he was directed to do that both by the representative of the owner, the defendant, and by the architect, and in pursuance of that he did it; that when he went to the architect after completing the building and told him that he came for a settlement, he was told by the architect that there could be no settlement because the owners were not satisfied with the incline, and that they would have to be satisfied; and that he then called upon the defendant company and asked them for a settlement, and that they told him there could be no settlement unless he covered the incline with steel plates,” and that there was no provision in the contract for steel plates.
    A mere mistake in judgment on the part of the architect is not ground for judicial interference with his decision where it is stipulated in the contract that it shall be conclusive, unless it be so gross as necessarily to imply bad faith or a failure to exercise an honest judgment; but a demand of the owner after full performance by the contractor, which the' architect attempts to assist the owner in enforcing by refusing his certificate unless it is complied with, may be so unconscionable, or so utterly unreasonable and unwarranted on its face that the mind is irresistibly led to the conclusion that they are acting in collusion within the meaning of the decisions.
    Argued Oct 18, 1906.
    Appeal, No. 117, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 664, on verdict for defendant in case of Edward Pay v. Lester Piano Company.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orladx and Head, JJ.
    Reversed.
    Assumpsit to recover a balance alleged to be due on a building contract. Before WlLLSON, P. J.

      The facts are stated in the opinion of the Superior Court.
    At the trial plaintiff’s attorney made the following offer:
    I propose to show that the architect made a mistake either in the plans or the specifications, which rendered it physically impossible to comply with both; that when that fact was called to his attention he directed the plaintiff to go on and finish that building according to the plans, to build the floor level, regardless of the old floors in the old building, which the specifications required should be on a line with the new floor; that he was directed to do that both by ’ the representative of the owner, the defendant, and by the architect, and in pursuance of that he did it; that when he went to the architect after completing the building and told him that he came for a settlement, he was told by the architect that there could be no settlement because the owners were not satisfied with the incline, and that they would have to be satisfied; and that he then called upon the defendant company and asked them for a settlement, and that they told him there could be no settlement unless he covered the incline with steel plates; that upon the plaintiff objecting to this, that it was not in the contract, he told them he wanted his money and was willing to make a deduction and asked if §100 would do it, whereupon Mr. Miller, president of the company, in a sneering manner, told him that §1,000 would not cover it, that it would take more money than was coming to him; and, further, that the building was completed according to the modifications as required by the architect, by tbe contractor, and, turned over to the defendant and is still in their use and occupation, and that the amount due under the contract to the plaintiff is a balance of §1,150. Objection; objection granted; exception. [1]
    The court directed the jury to find a verdict for defendant. [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions ; (2) binding instructions for defendant.

      Edmund Randall, with him James A. Flaherty, for appellant,
    cited: Pittsburg Terra Cotta Lumber Co. v. Sharp, 190 Pa. 256; Whelen v. Boyd, 114 Pa. 228; Tilden v. Buffalo Office Building Co., 27 App. Div. 510 (50 N. Y. Supp. 511); Bannister v. Patty, 35 Wis. 215.
    February 25, 1907 :

      Francis Chapman, of Chapman §• Chapman, with him S. Spencer Chapman, for appellee,
    cited : Payne v. Roberts, 214 Pa. 568; Reynolds v. Caldwell, 51 Pa. 298.
   Opinion by

Rice, P. J.,

The plaintiff contracted in writing with the defendant to furnish the materials and perform the work necessary for the erection of a brick addition to the defendant’s manufactory* “ in strict conformity with and according to the true intent and meaning of the drawings and specifications prepared by the architects.” It appears from the plaintiff’s statement of claim and.his offer of testimony that he alleges : that when the construction of the second-story floor was reached it was discovered that, owing to the settling of the floors of the old building in places, it was physically impossible to make the floor of the new building level throughout, as required by the working plans furnished by the architects, and at the same time have it on an exact line or level with the floors of the old building, as required by the specifications; that he was directed by the architects and the defendant to finish the building according to the plans, regardless of the floors in the old building, which he did, connecting the floors at the openings in the wall by inclines ; that with this modification he completed the building in accordance with the contract; and of the contract price there remains unpaid $1,150. Referring now to the contract, we find the provisions: that the work was to be done “ under the direction and to the satisfaction ” of the architects; that “ the architects’ decision shall be conclusive as to the true purport and meaning of the drawings and specifications; ” that the plaintiff should “ comply with the directions of the architects as to the time and manner of performing the work, the precautions to be taken, and the quality of material and workmanship involved; ” that the architects should examine the monthly Statements the plaintiff was required to furnish and “ approve the same, in whole or part, as in their judgment is deemed to be a fair valuation of the said work and materials, less ten per cent thereof; ” which should be retained “ until the satisfactory completion and final approval of the work by the architects ; ” and that, “ No certificate given or payment made under this" contract, except the final certificate and final payment, shall be evidence of the performance of this contract, in whole or part, and no payment shall be considered to be an acceptance of defective work or improper materials.”

On the trial, the plaintiff put in evidence the contract, plan and specifications, and was proceeding to show performance by the testimony of a witness, when the defendant’s counsel objected that the proper way of proving performance of the contract was by producing the architects’ certificate, and if the plaintiff could not produce it he was bound to account for its absence. The plaintiff then made the offer which is quoted in the first assignment, to which the defendant’s counsel objected as follows: “ I object to the offer because in the statement of claim it is alleged that the plaintiff has substantially completed the contract and that he is unable to furnish the architects’ certificate, which by the contract itself is made evidence of performance, by reason of its being wrongfully withheld from him; and because the certificate is not produced or its absence explained by showing combination or collusion justifying going on in its absence.” The court sustained the objection, and as ■the effect of this ruling was to prevent the plaintiff from proving performance, binding instructions for the defendant logically followed. Another preliminary matter to be noticed is that it is alleged in the plaintiff’s statement of claim that his failure to furnish a certificate from the architects of their approval of the work was owing to the fact that it was wrongfully withheld from him; therefore no objection to the offer upon the ground that proof of that fact was not admissible under the pleadings could be sustained.

We need not take up time in considering whether the contract contemplated that the final approval of the work by the architects should be in writing. We assume for the purpose of the present discussion that this is what was meant, and therefore that the plaintiff could not recover unless sufficient excuse or reason for not producing it was shown. What would be such sufficient reason or excuse has been considered in Whelen v. Boyd, 114 Pa. 228 and Pittsburg Terra Cotta Lumber Co. v. Sharpe, 190 Pa. 256, and the recent case of Payne v. Roberts, 214 Pa. 568 was decided on a principle which is to be kept in View in the determination of the question before us. In the first case it was claimed that the certificate of the defendant’s superintendent that the work was well and properly done according to the contract was a prerequisite to recovery. Without deciding this point, the court held that even if it was a prerequisite, the fact that the superintendent refused the certificate, not because he did not think it was deserved, but because he had been ordered by the defendant not to give it, was a sufficient excuse. The testimony which was held sufficient to warrant a jury to infer the fact was, that in a conversation the plaintiff had with the superintendent the latter admitted the completion of the work, but refused to give the certificate because he had been ordered not to do so by the defendant. In the second case it was held, that the question whether the contractor had sufficient reason or excuse for not producing the architect’s certificate that the work had been completed to his satisfaction, as stipulated in the contract, was for the jury, there being evidence tending to show that the work was done in all particulars as called for by the contract, that it was completed within the stipulated time, and that the architect refused to give the final certificate when requested to do so, and this being followed by evidence, “that the architect, in collusion with the defendant, wrongfully withheld it.” The evidence recited in the charge of the trial judge, upon which the question of the wrongful withholding of the certificate was submitted to the jury, did not more clearly show collusion than does the evidence in the present case. Speaking of the purpose and effect of such provision in a building contract, Justice Dean said: “ We fear appellant misapprehends the purpose of this provision; evidently it was inserted to protect the owner against any unjust or unfounded claim by the contractor, and in that view of it, it was a reasonable provision; but if the contractor honestly performed its covenants, it was not intended to protect the owner from an honest payment of the price by a capricious or fraudulent withholding of the certificate. Nor would the law tolerate such wresting from its purpose of this provision.” In the third case it was held, that a clause providing that if work done or materials furnished should be unsatisfactory to the architects, the contractor would, on notice, remove such work and materials, and supply other Satisfactory to the architects, and in case of default, the owner, after ten days’ notice to the contractor, could provide other workmen and materials to complete the work, should be enforced in the absence of fraud or collusion between the architects and owner, and was not affected by an arbitration clause recited in the opinion of the court. But in the course of the discussion Mr. Justice Stewart, who rendered the opinion of the court said: “Notwithstanding all we have said, however, and wholly independent of the reference clause, the plaintiffs would still have the right to maintain an action on the contract, if they could show that the dissatisfaction expressed by the architects, was brought about through collusion between the latter and the owner, in order to disturb and defeat the plaintiffs in the lawful exercise of their work.” Then after reviewing the evidence he continued : “ Considered as a whole, we fail to see anything in it that would warrant even reasonable supposition of bad faith on the part of the architects. Without this on their part, neither persistent opposition by the owner to the contractors, nor his repeated and continued remonstrances and arguments addressed to the architects, could establish the combination and collusion necessary to avoid the finding of the latter.”

As this case is now presented, we must assume that the plaintiff is able to prove full performance of the contract in accordance with the plans and specifications as modified by the defendant and the architects, and that when he went to the architect after completing the building and told him that he came for a settlement, he was told by the architect “ that there could be no settlement because the ow;ners were not satisfied with the incline, and that they would have to be satisfied; ” further, that the reason which the defendant gave for refusing settlement was, not that there had not been “ satisfactory completion and final approval of the work by the architects,” but that the inclines were not covered with steel plates. But it is not pretended that there is anything in the contract, the plans or the original specifications which required this to be done; nor, so far as now appears, was it required by the specifications as modified. On the contrary, the work was done precisely as the plaintiff was directed to do it, and if the offer shows all that occurred, it was not claimed otherwise by the defendant or the architects. A mere mistake in judgment on the part of the architect is not ground for judicial interference with his decision where it is stipulated in the contract that it shall be conclusive, unless it be so gross as necessarily to imply bad faith or a failure to exercise an honest judgment. And, without deciding the point, it may' be conceded for present purposes that although the architect is the employee of the owner proof of even such gross dereliction on his part, standing alone, would not dispense with the production of the certificate of approval which the contract calls for, and enable the contractor to maintain a suit upon the contract. But a demand of the owner after full performance by the contractor, which the architect attempts to assist the owner in enforcing by refusing his certificate unless it is complied with, may be so unconscionable, or so utterly unreasonable and unwarranted on its face, that the mind is irresistibly led to the conclusion that they are acting in collusion within the meaning of the decisions. Collusion is defined to be a secret agreement for a wrongful purpose; fraudulent co-operation; a secret arrangement between persons to defraud another, or to obtain an unlawful object, through .legal proceedings. From the very nature of the act it would be impossible in very many if not in most cases to establish the existence of such secret agreement by direct and positive testimony. Reliance must often be placed, and may very safely be placed, upon circumstances which lead to the conclusion that apparently isolated acts are truly parts of a common whole; that they have sprung from a common object, and have in view a common end. This case may present a very different aspect when the facts are fully developed, but assuming the facts to be as stated in the plaintiff’s offer, a jury could find that the defendant refused to pay the plaintiff the amount that was due him, not because he had not fully performed his part of the contract, but because he would not do something he was not under obligation to do, and that the architect refused to give the certificate not in the exercise of his independent judgment upon the facts, but because the plaintiff would not comply with this unwarranted demand of the defendant. We are of opinion that the evidence should have been admitted, and if it came up to the offer and the effect of it was not destroyed by other testimony, should have been submitted to the jury with instructions, that if they should find that the architects, in collusion with the defendant, wrongfully withheld the certificate, the nonproduction of it would not preclude recovery by the defendant.

Judgment reversed and venire facias de novo awarded.


author: Portee., J.,

text:
    Old Tacony Road.

      Road law — Vacation of road — Revision of city plan — Confirmation of revised plan.

    Where a portion of a street of the city of Philadelphia appearing on the confirmed plan is omitted from a revised plan, and the revised plan is duly authorized by ordinance and subsequently confirmed, such confirmation works a legal vacation of the part of the street thus omitted. The right of a property owner to damages for such vacation accrues from the date of the confirmation of the revised plan.

      Road law — Vacation of street — Jury of view — Setting aside report of jury of view — Laches—Mandamus—■Damages.
    Where the report of a jury of view assessing damages and benefits arising from the vacation of a street is set aside by the court, and shortly thereafter the court makes an order refusing to reopen the decree and refer the report back to the viewers, and property owners take no further steps for seven years, when they petitioned the court to amend its decree setting aside the report of the viewers, so as to direct the report to be referred back to the jury of view, so that the jury might determine whether damages should not be assessed against the city, the previous damages having been assessed against a railroad company, the court will refuse the petition because of the laches and delay of the petitioners, and because of their neglect to pursue their remedy by appeal.
    Where a report of a jury of view assessing damages arising by reason of the vacation of a street, has been set aside by the court, a property owner in whose favor damages have been assessed has no standing to petition for mandamus execution against the city for the payment of the damages.
    The report of a road jury awarding damages is not a final adjudication in favor of those to whom damages are so awarded, nor does it become a debt of record due by the municipality until it is approved by the court.
    Argued Oct 19, 1906.
    Appeal, No. 244, Oct. T., 1905, by Lynford Knowles et al., from orders of Q. S. Phila. Co., May Term, 1895, discharging rule to amend a decree, and discharging rule for mandamus In the Matter of the Vacation of Old Tacony Road from Princeton Street to Cottman Street in the Thirty-fifth Ward.
    Before Rice, P. J., Poster, Hender-, son, Oready and Head, JJ.
    Affirmed.
    Rule to amend decree.
    Rule for mandamus.

      Frrors assigned were the orders of the court.

      James W. M. Neivlin, with him Thomas A. Fahy, for appellant.
    — The judgment may be amended by striking out erroneous entries, supplying omissions, or inserting matter for the purpose of removing any apparent ambiguity, or giving effect to the judgment: Stephens v. Cowan, 4 Watts, 511; Smith v. Hood, 25 Pa. 218; Gourley v. Hess, 8 W. N. C. 140.
    ' The learned court erred in discharging the rule for mandamus execution.
    The city having appeared throughout the proceedings before the jury of view and filed no objection to the awards to the petitioners, cannot after nine years question their validity. There is a conclusive presumption of regularity, as the court had jurisdiction of the subject-matter: McPherson v. Cunliff, 11 S. & R. 422; State of Ohio v. Hinchman, 27 Pa. 479; Brundred v. Egbert, 164 Pa. 615 ; Wilson v. Scranton City, 141 Pa. 621; Ogden v. Philadelphia, 143 Pa. 430; Larkin v. Scranton, 162 Pa. 289.
    The mandamus should have been granted : Upsal Street, 22 Pa. Superior Ct. 150; Penrose Ferry Ave., 27 Pa. Superior Ct. 341.

      John H. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    — If the decree setting aside the reports was not definite the appellants could have started de novo, provided they were still within the period of limitation for beginning actions. They did not pursue that course and now it is too late : Tabor Street, 25 Pa. Superior Ct. 355 ; Butler Street, 25 Pa. Superior Ct. 357.
    Moreover, the appellants are guilty of laches. The fact that they were mistaken about their legal rights, does not help them: Upsal Street, 22 Pa. Superior Ct. 150.
    February 25, 1907:
    The court of quarter sessions can either confirm or set aside a report of viewers: Walnut Street, 24 Pa. Superior Ct. 114, and having once exercised either privilege cannot revoke its order.
    The time for appeal cannot be extended beyond the statutory period: Road in Adams Twp., 130 Pa. 190; Winter Avenue, 23 Pa. Superior Ct. 353.
    The decree in the present case being obtained adversely, the power of the court to open it ceased after the end of the term at which the decree was entered: Catlin v. Robinson, 2 Watts, 373; Stephens v. Cowan, 6 Watts, 511; Ullery v. Clark, 18 Pa. 148 ; Mathers v. Patterson, 33 Pa. 485; Oil Co. v. Carothers, 63 Pa. 379; King v. Brooks, 72 Pa. 363; Conrad v. Ins. Co., 81* Pa. 66; Hill v. Egan, 2 Pa. Superior Ct. 596; Lance v. Bonnell, 105 Pa. 46 ; Hill v. Harder, 3 Pa. Superior Ct. 473; Fisher v. Ry. Co., 185 Pa. 602; Dean v. Munhall, 11 Pa. Superior Ct. 69; Com. v. Krause, 198 Pa. 391; O’Donnell v. Flanigan, 9 Pa. Superior Ct. 136.
    The discharge of the rule for writs of mandamus execution was proper: Pringle Street, 167 Pa. 646.
    The award of a jury of view is not a debt of record, or judgment against the city, and cannot be collected until the confirmation of the award or report: Sedgeley Avenue, 88 Pa. 509; Township of North Whitehall v. Keller, 100 Pa. 105; In re Kensington & Oxford Turnpike Co., 97 Pa. 260 ; Spring Street, 112 Pa. 258; Norris v. Phila., 70 Pa. 332; Myers v. South Bethlehem Boro, 149 Pa. 85; Second Avenue, 7 Pa. Superior Ct. 55 ; Evans v. Phila., 1 W. N. C. 119; Reimer v. Phila., 12 Phila., 408; Lex Street, 12 Phila. 622; Devereux Street, 13 Phila. 103; Ziegler’s Petition, 12 York, 158; Boyer’s Petition, 15 Pa. C. C. Rep. 531-533.
   Opinion by

Portee., J.,

The revision of that part of the confirmed plan of the city of Philadelphia, which included the portion of the Old Tacony road involved in this proceeding, was duly authorized by the ordinance of March 29,1887, and the confirmation, on April 28, 1890, of the revised plan, which struck a portion of the street from the plan of the city, worked a legal vacation of the part of the street thus omitted : Wetherill v. Pennsylvania Railroad Company, 195 Pa. 156; Carpenter v. Pennsylvania Railroad Company, 195 Pa. 160 ; Tabor Street, 25 Pa. Superior Ct. 355 ; Butler Street, 25 Pa. Superior Ct. 357. The property of the appellants abutted directly upon the part of the street so vacated, and if they were entitled to damages for such vacation, that right accrued and they had an available remedy on April 28, 1890.

Lynford Knowles, one of the appellants, on May 21, 1895, filed in the court of quarter sessions a petition for the appointment of viewers to assess the damages and benefits arising from the vacation of the street, and the court, on May 29, 1895, appointed the viewers, as prayed for. The proceedings before this jury of view were long delayed and, although no order of court was made continuing the jury from term to term, the report was not filed until April 2,1896. The report when filed awarded to the several appellants damages for various properties, abutting upon the Old Tacony road and owned by the respective appellants; and assessed benefits against the Philadelphia & Trenton Railroad Company equal to the whole amount of the damages awarded, except $200, which amount was assessed as a benefit against the property of John F. Manning. The railroad company and Manning, respectively, filed exceptions to the report, and the court, on October 3,1896, sustained the exceptions and set aside the report of the jury. After the end of the term at which the decree had been entered setting aside the report of the jury of view, viz : on November 12, 1896, on motion of the attorney for the petitioners, who are now these appellants, the matter was referred back to the same jury of view. The jury, on December 3, 1896, filed a second report, and on the nineteenth of the same month filed a supplemental report, awarding damages to these appellants, among others, and again assessing benefits against the Philadelphia & Trenton Railroad Company and John F. Manning, respectively, in amounts which were exactly equal to the aggregate of the assessment of damages. The railroad company and Manning again filed exceptions to both the second report and the supplement thereto. The court, on December 23, 1897, entered a decree sustaining the exceptions and setting aside the report of the jury of view. Lynford Knowles, the appellant, on February 21, 1898, presented a petition praying the court to reopen the decree of December 23, 1897, and again refer back the report to the viewers, and, on March 17, 1898, the court made an order refusing to grant the prayer of this petition. No appeal was taken from this order and neither the making of the order, nor any action of the court prior thereto is now assigned for error.

The appellants then seem to have slumbered for over seven years, and nothing further was done in the proceeding until April 25,1905, when Lynford Knowles, the appellant, presented a petition praying the court to “ amend its decree entered in this matter on December 23, 1897, by striking out therefrom that part thereof which orders the setting aside of the report of the jury of view and by instead thereof ordering that the said report be referred back to the jury of view, for the determination of the damages suffered by your petitioner and by other property owners by reason of the vacation of Old Tacony road and the benefits, if any, to any property owners by such vacation, and the assessing of such damages against the city of Philadelphia and against property owners, if any, whose land is benefited by such vacation.” The court, upon presentation of this petition, granted a rule to show cause why the decree should not be amended as prayed for. The city filed an answer to this rule, setting forth the former proceedings in the case, the nature of the statutory right which the petitioner was seeking to enforce, the long delay which the petitioner had suffered to elapse since the making of the final decree, and denying his right to the relief now sought. The court, after argument, discharged the rule to show cause why the decree should not be amended, which action is now the foundation of the first specification of error.

The manifest purpose of the petition was to induce the court to strike down its order of December 23, 1897, setting aside the report of viewers, and to vacate its order of March 17, 1898, refusing to refer the matter back to the jury of view for further proceedings. If the refusal of the court to vacate the orders mentioned was a definitive decree, which prevented the appellants from further proceedings in the court below, and from which an appeal would lie, then it is manifest that the barrier which really prevented further proceedings in the court below and which was actually the final decree was to he found in the orders which it was sought to 'vacate. The order of May 25, 1905, discharging the rule to show cause why the or--der'of December 28, 1897, should not be amended and the matter referred back to the same jury of view, left the appellants in exactly the same position which they had occupied at all times subsequently to March 17, 1898. The order of December 23,1897, setting aside the report of the jury of view, struck down all inchoate rights which any person might have acquired under the findings of that jury, and with the report went all the proceedings before the jury. The order of March 17,1898, refusing to refer the matter back to the viewers, was a dis.tinct and unequivocal denial of any right of the present appellants to proceed further before that jury of view; they could then do nothing further in the court below, for they had suffered one full term to elapse, without any action whatever, after the report of the viewers had been set aside, before even making their application to have the matter referred back to the same jury. It is not necessary, in this case, to determine with exactness whether the right of the appellants to have the pro- • ceedings reviewed by an appellate-court arose upon the making of the order setting aside the report of viewers, on December 23, 1897, or upon the making of the order refusing to refer the matter back to the viewers on March 17,1898. There can be no question that the-order of March 17,1898, following as it did the order setting aside the report of viewers, was in that proceeding a final order from which these appellants had the right to appeal. The Act of May 19, 1897, P. L. 67, section 4, limited the period within which they might exercise that right of appeal to six calendar months from the entry of the order. These parties did not exercise that right within the period allowed them by the statute, but, having suffered seven years to elapse, they attempted to resurrect that dead right,by petitioning the court below to vacate the orders which had turned them out of court. “ The time for reviewing the proceeding has long since expired and that obstacle cannot be surmounted by asking the court to strike off the order of confirmation- and then appealing from the refusal of the court to do so: ” Road in Adams Township, 130 Pa. 190 ; Winter Avenue, 23 Pa. Superior Ct. 353; Union Township Road, 29 Pa. Superior Ct. 573. Even if the order of March 17, 1898, had not been a definitive decree,'the appellants having suffered seven years to elapse without taking further steps in the proceedings, and then having attempted to revive them, fifteen years after the right of action had accrued, their long inaction imported an intention to abandon the proceeding, they were not entitled to the order for which they prayed as a matter of right, and the court could in the exercise of its discretion have required them to present anew petition for anew jury of view : Upsal Street, 22 Pa. Superior Ct. 150. The bar of the statute of limitations could, it is true, have been interposed against the right to recover in a new proceeding : Butler Street, 25 Pa. Superior Ct. 357, but for the long delay the appellants alone were responsible. The first specification of error is dismissed.

The appellant having failed to induce the court to vacate its orders made many years before and refer the matter back to the same jury of view, for the purpose, as stated in his petition, of “ the determination of the damages suffered by your petitioner and by other property owners by reason of the vacation of the Old Tacony road and the benefits, if any, to any property owners by such vacation,” shifted his position and joined with others, in a petition which’ was presented to the court on June 19, 1905. This petition represented that the first report of the viewers, filed April 2,1896, awarded damages to the several petitioners, respectively, in the different sums in the petition set forth, that these amounts were awarded, to the petitioners respectively, bj*- reason of the damage done to their several individual properties, on Old Tacony road, caused by the vacation of said street, that no exceptions were filed to the said awards so made in their favor, and that the said awards upon the filing of the report of the jury without exceptions became in themselves a complete and final adjudication in favor of the petitioner’s, and against the city of Philadelphia, for the amounts of said awards. The petitioners prayed for writs of mandamus execution against the city of Philadelphia, requiring the payment to petitioners, respectively, of the amounts so awarded by the report, of April 2, 1896. The' court granted a rule upon the city to show cause wlij' the prayer of the petitioners should not be granted, which rule, after argument, was, on June 26, 1905, discharged by the court. The discharge of the rule and the refusal of the writ of. mandamus execution is the foundation of the second specification of error. The petition ignored the fact that the first report of viewers, filed April 2, 1896, was, on October 3,1896, set„aside by the court, and that these appellants by their attorney, on November 12, 1896, moved the court to refer the matter back to the same jury. Exceptions had been filed to the report and the court.had jurisdiction, under the provisions of the Acts of June 13, 1836, P. L. 555; April 13, 1854, P. L. 360, and May 3, 1869, P. L. 1247, to sustain the exceptions and set aside the report: In the Matter of the Opening of Wharton Street, 48 Pa. 487; In re Kensington & Oxford Turnpike Company, 97 Pa. 260; Thirtieth Street, 147 Pa. 245; Paschall Street, 81 Pa. 118; Walnut Street, 24 Pa. Superior Ct. 114. The report of a road jury awarding damages is not a final adjudication in favor of those to whom damages are so awarded, nor does it become a debt of record due by the municipality, until it is approved by the court. In committing road cases to the court of quarter sessions, which is a court of record, of constitutional origin, and of common-law powers, the legislature manifestly intended that a judicial discretion should be exercised in such cases. ... If a mere registry of the report of viewers had been intended, it would have been made most naturally in the recorder’s office, and no approval of the quarter sessions would have been required, but when a court of record was required to approve, a judicial discretion was implied: ” In the Matter of the Opening of Wharton Street, 48 Pa. 487. The court of quarter sessions, exercising a jurisdiction expressly conferred upon it, set aside the report of viewers upon which this petition for á mandamus execution was supposed to bé based, and as the findings of the jury lacked the approval of the court required by law to constitute a final adjudication of a debt due by the municipality, the learned judge of the court below was clearly right in refusing to award a mandamus execution. The second specification of error is dismissed.

The order of the court below is affirmed.


text:
    Arnold, Appellant, v. Buffalo, Rochester & Pittsburg Railway Company.

      Railroads — Eminent domain- — Settlement with landowner — Dowei— Deed.

    The inchoate dower of a wife is defeated by the survey, location, and adoption of the right of way of a railroad over the land of her husband, an agreement by the owner, her husband, and the railroad company upon the amount of damages to be paid for the taking of the right of way, the payment of such damages by the company to the owner, a grant by the owner of the right to construct and operate the road upon the location adopted and a release of damages therefor, and the construction and operation of a public railroad upon the location agreed upon.
    Dower inchoate is not an estate in the land, but a mere contingent claim, and is defeated by proceedings to appropriate the land to public use during the life of the husband.
    Argued Oct. 22, 1906.
    Appeal, No. 203, Oct. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1902, No. 343, on verdict for defendant in case of Mary A. Arnold v. Buffalo, Rochester & Pittsburg Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Writ of dower unde nihil habet. Before Wilson, J., specially presiding.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed..

      Error assigned was in giving instructions for defendant.

      Roland D. Swoope, for appellant.
    — While the right of dower is inchoate during the life of the husband, yet such a right is subject to judicial protection: Buzick v. Buzick, 44 Iowa, 259; McClurg v. Schwartz, 87 Pa. 521; Thompson v. Morrow, 5 S. & R. 288; Ayetsky v. Goery, 2 Brewster, 302; Benner v. Evans, 3 P. & W. 454.
    Where corporations with power to take lands under the right of eminent domain, do not proceed under the statute to condemn them, but purchase from the owner, the right acquired is but that of a purchaser and not the same as that by proceedings under the statute: Lord v. Meadville Water Co., 135 Pa. 122; Penna. Co. v. Railroad Co., 204 Pa. 356; P. & R. Railroad Co. v. Pottsville Water Co., 182 Pa. 418; Mount Pleasant Coal Company v. Railroad Co., 200 Pa. 434.
    February 25, 1907 :
    The purchase by a railroad company from the husband does not divest dower: Nye v. Taunton Branch R. R. Co., 113 Mass. 277; Washburn on Real Property, p. 221, sec. 37; Scribner on Dower, 2d ed., p. 581.
    It is only where a railroad company acquires the property by condemnation proceedings that they obtain merely an easement upon the land: West Penna. Railroad Co. v. Johnston, 59 Pa. 290; Page v. Heineberg, 40 Vt. 81.

      Frank Fielding, with him O. II M’ Qauley, for appellee.—
    An inchoate right of dower is destroyed by a voluntary conveyance executed by the husband alone without payment of any consideration, of a right of way to a railroad company to be used only for railroad purposes, as this constitutes a dedication of the land to a public use: Venable v. Wabash Western R. R. Co., 18 L. R. A. 68; Flynn v. Flynn, 42 L. R. A. 98.
    We are unable to find any decided case where a feme covert has been held to be such an owner as would compel the company to agree with her upon the amount of such damages.
    It is well settled that damages belong to the owner at the time of the taking and do not pass to the purchaser of the land' under a deed made subsequent to the taking, unless expressly conveyed by such deed: Zimmerman v. Union Canal Co., 1 Watts & Serg. 346 ; M’Fadden v. Johnson, 72 Pa. 335; Blackiston’s Appeal, 81* Pa. 339; Fries v. Southern Penna. R. R. & Mining Co., 85 Pa. 73; Hoffman’s Appeal, 118 Pa. 512.
    The defendant company has used these lands for railroad purposes, and Mrs. Arnold can make no claim unless the company should use them for some other purpose: Flynn v. Flynn, 42 L. R. A. 98 ; Bean v. Kulp, 7 Phila. 650; Brown v. Corey, 43 Pa. 495.
   Opinion by

Porter, J.,

The Clearfield and Mahoning Railway Company was duly incorporated, by letters patent dated May 28, 1892, for the purpose of constructing a line of railroad from a point on the Buffalo, Rochester & Pittsburg Railway, at or near Jefferson line, in Clearfield county, Pennsylvania, to a connection with the Beech Creek Railroad at or near Clearfield, Clear-field county, Pennsylvania. The company was duly organized, and having caused experimental lines to be surveyed and marked upon the ground, the president and board of directors of said company did, on May 31, 1892, select, fix and adopt one of the lines so marked, as and for the location of the proposed road. The location thus adopted, and upon which the railroad was subsequently constructed and was and is now operated, passed through two tracts of land owned by Samuel Arnold. Samuel Arnold, on July 12,1892, executed an agreement under seal, “ in consideration of the advantages to be derived from the location and construction of-the railroad hereafter mentioned, and of the sum of one dollar, to me in hand paid by the said Clearfield & Mahoning Railroad Company, at and before execution hereof, the receipt whereof is hereby acknowledged ; and of the further consideration hereinafter named to be done by said company upon the execution and delivery of the deed of conveyance hereinafter mentioned, do hereby for myself, my heirs, executors, administrators and assigns, grant to the said company, their1 successors and assigns, the right and privilege, irrevocable, of surveying, locating, constructing and using, by themselves, their engineers, contractors, agents and employees, a railroad upon said line or route and with as many tracks as they may deem proper, through, over, and upon a certain tracts or parcels of land belonging to me and situate in Bloom and Pike Townships, Clearfield county and state of Pennsylvania.” Then follows a brief description of the land to be used for right of way, which description is dependent upon and refers to the line of the road as already located and marked through the tracts of land; the same being referred to and designated “ as now located and extending from station 493 plus 50 to station 581, a distance of 8750 feet and from station 719 plus 08 to 845 plus 41, a distance of 12633 feet.” This agreement also contained the covenant on the part of Arnold to execute a deed in fee simple for the strip of ground “ whenever requested.” And, further, to release the company, their successors and assigns from all claims and demands for damages, by reason of the talcing and-using of said land for said railroad, or by reason of the construction, maintenance and operation of said railroad on and over said tract or parcel of land. This agreement also provided that the railroad company should construct and maintain a siding, sufficient to contain six cars. The railroad was constructed through the tracts of land upon the said location, and was subsequently completed between its authorized termini and has been operated for many years. On November 15, 1892, Arnold and the railroad company entered into a written agreement as to the manner in which the siding, referred to in Arnold’s release of damages, should be constructed. And that the railroad constructed and maintained the siding in accordance with that agreement is an undisputed fact. Arnold on the same day, November 15,1892, executed two deeds, in which his wife, the appellant, did not join, to the railroad company conveying the land covered by the right of way of the railroad, but as the appellant has not printed those deeds, it is impossible for us to say what title they vested in the corporation. The Buffalo, Rochester & Pitts-burg Railway Company, the appellee, subsequently leased the Clearfield & Mahoning Railway, and is now lawfully operating-same. The plaintiff was, at the time the railroad located its line over the land, the lawful wife of Samuel Arnold, and so continued until the death of the latter on May 31, 1899. The appellant seeks in this proceeding to have dower assigned to her, out of the land covered by the right of way of the railroad company. The assignments of error present but one question. Is the inchoate dower of a wife defeated by the survey, location and adoption of the right of way of a railroad over the land of her husband, an agreement by the owner, the husband, and the railroad company upon the amount of damages to be paid for the taking of the right of way, the payment of said damages by the company to the owner, a grant by the owner of the right to construct and operate the road upon the location adopted and a release of damages therefor, and the construction and operation of a public railroad upon the location agreed upon ?

The railroad company derived its right to appropriate private lands over which it located its line, upon paying or securing compensation to the owner, from the acts of February 19,1849, P. L. 79 and. April 4, 1868, P. L. 62. The 10th section of the act of 1849 empowers the president and directors of the company, “ to survey, ascertain, locate, fix, mark, and determine such route for a railroad as they may deem expedient,” between the termini authorized by the charter. This is the grant of the power to take private property for a purpose which the legislature in its discretion has declared to be a public use. The 11th section of the act provides the manner in which the right of the private owner to the compensation or security guaranteed by the constitution shall be rendered secure. An entry on lands of a private owner to build a railroad, is an entry under the state, exercising the right of eminent domain, and in pursuance of public law; and all private contracts are subordinate thereto. It is the resumption by the sovereign of a clear right of sovereignty, and in subordination to which the covenants of all deeds are made. Samuel Arnold held the land in question, as every man holds his property, subject to the call of the governmant. The statutes which invested this railroad company with this attribute of the sovereign, authorized it to locate its line over private property, but required it to apply to the owner and endeavor to agree with him as to the compensation, unless the owner was absent or legally incapacitated, and it is only in case of a failure to agree that it is necessary to invoke the action of the courts. When there is a failure to agree, either the owner or the corporation may petition the court for the appointment of viewers to ascertain the damages. When them is an agreement as to the amount of damages, they must be paid before the company has a right to take possession of the land, and when there is a failure to agree they must furnish security for such damages before they acquire dominion over the property. Whether the company agrees with the owner and pays him the amount agreed upon, or furnishes the required security, takes possession of the land and leaves the amount of the damages to be determined in the manner provided by law, the result is the same in either case, the whole proceeding is an appropriation of private property to a public use, in the manner provided by law. “ The survey on the ground, followed by selection and proper adoption of a line for the proposed road, makes what was before experimental and open, a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates to the use of the corporation. It gives to the latter a standing to settle with and make compensation to the owner for the property thus taken and appropriated to its own use, and, in case they cannot agree, it gives adequate security for the payment of damages when legally ascertained. Until such compensation is made, or in lieu thereof, approved security is given, the title of the owner is not divested. As against him, the corporation, by its act of location, can acquire only a conditional title which ripens into an absolute one upon making compensation: ” Johnston v. Callery, 173 Pa. 129. “ The act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. After the act of location by the company, the owner or the company may proceed at once to secure an ascertainment of damages : ” Williamsport, etc., R. R. Co. v. Railroad Co., 141 Pa. 407; Wadhams v. Lackawanna & Bloomsburg Railroad Company, 42 Pa. 303. The filing and approval of the bond vests the title to the right of way in the railroad company, and the owner must look to his bond for his damages: Fries v. Southern Pennsylvania Railroad & Mining Company, 85 Pa. 73 ; Philadelphia & Reading Railroad Company v. Lawrence, 10 Philadelphia, 604 ; Reitenbaugh v. Railroad Company, 21 Pa. 100. There can be no question that under the undisputed facts hi this case the railroad company in taking the property was exercising the right of eminent domain which had been delegated to it by the commonwealth: Brown v. Corey and Peterson, 43 Pa. 495; Hays v. Risher, 32 Pa. 169.

The constitution requires that compensation be made to the owner of property taken or injured, and the statute requires that the agreement as to the amount of the compensation shall be made with the owner, and in the event of a failure to agree that proceedings to determine the amount of the damages shall he in the name of the owner. It is only the owner who is entitled to compensation. “ It is true that it has been held, that one who holds less than a fee simple in the land is an owner within the meaning of the statute, but his estate must be a part of the fee, one of the fractions of the unit, necessary with other interests to constitute the entire whole : ” Workman v. Mifflin, 30 Pa. 362. The appropriation being intended for public use, policy requires' that the liens shall be divested, but at the same time not at the expense of any persons interested, who have the same lien on .the money that they had on the land itself. “ The owner of the land, who was insolvent, had the legal right to receive the money from the company, and payment to him would have been a good payment without notice of the equitable interest. But although he was the owner of the land yet in respect to the legacies charged on the land, he was a trustee for others who had an equitable lien on the money: ” Deckert’s Appeal, 5 W. & S. 342; Reese v. Addams, 16 S. & R. 40 ; Philadelphia & Reading Railroad Co. v. Pennsylvania Schuylkill Valley Railroad Co., 151 Pa. 569 ; Bean v. Kulp, 7 Philadelphia, 650.

The inchoate dower of a wife may be defeated by the exercise of eminent domain during the life of the husband: Washburn on Real Property, book 1, page 220, section 37. The estate of the widow after assignment of dower is a continuation of the estate of her deceased husband. It follows that, while living, he as owner, is entitled to and represents the absolute fee. Dower inchoate is not an estate in the land but a mere contingent claim, and is defeated by proceedings to appropriate the land to public use during the life of the husband: Moore v. City of New York, 8 N. Y. 110; Duncan v. City of Terre Haute, 85 Indiana, 104; Venable v. Wabash Western Ry. Co., 112 Missouri, 103 (20 S. W. Repr. 493) ; Gwynne v. Cincinnati, 3 Ohio, 24; Thurber v. Townsend, 22 N. Y. 517. When lands are dedicated to public use by the husband, or by a legal proceeding to which he is a party, the same result follows. “ Here, in this commonwealth, laws have been passed from time to time, altering our statute of distributions, and altering the manner of making wills. Those laws have been considered sound and good, if in operation at the time of the decedent’s death, no matter whose inchoate interests are affected. The legislature might at their discretion annul the common-law right of dower, and repeal the statute of wills. There is no constitutional provision guarding the conunon-law right of dower; it is not part of the marriage contract. It results from wedlock by the operation of the existing laws at the time of the husband’s death: ” Melizet’s Appeal, 17 Pa. 449. The statutes which invested the railroad company- with the power to appropriate land for a right of way clearly indicate the legislative intention that such taking should vest in the company the right to so occupy the land perpetually and exclusively. The constitution of the commonwealth and the legislation thereunder, require only that settlement be made with the owner. Samuel Arnold owned the land at the time of its appropriation by the railroad company by a title in fee simple, he was the only person who had any estate in the land and there were no creditors holding liens. He was, therefore, the only' party who was entitled to be heard upon the question of his damages, and by the settlement with him the railroad company acquired a perpetual right of way. The railroad company was authorized to appropriate this land, and the legislation which conferred that authority gave no right to compensation, to the wife of the owner, for an inchoate right of dower, nor is such right guaranteed to her by the constitutional provision. She had no estate in the land, nor had she any lien thereon. The’ assertion of any right to have dower assigned to her out of the right of way acquired by the railroad company, is inconsistent with the provisions of the legislation under which the railroad acquired title.

The judgment is affirmed.